Incontestable Trademark Newsletter - October 2010
ABSTRACT
Plaintiff, an animal-rights activist, searched for her name on defendants' Internet search engines and discovered that her name was listed in search results linked to sexual-dysfunction drugs and pornographic websites. Plaintiff sued for false endorsement, but the district court granted defendants' motion to dismiss her complaint. Because plaintiff could not prove a commercial interest in her name, she did not have standing to sue under the Lanham Act. Even if she had standing, the district court held that there was no likelihood that consumers would believe that plaintiff endorsed the products and services at issue. Plaintiff appealed and the Court of Appeals for the Seventh Circuit affirmed the dismissal of the complaint based on lack of standing.
CASE SUMMARY
FACTS
Plaintiff Beverly Stayart used the Internet to promote her animal-rights activities and other interests. Stayart believed that she was the only "Beverly Stayart" or "Bev Stayart" on the Internet. Defendants Yahoo! Inc. and Overture Services, Inc. (collectively "Yahoo!") provide search engines at www.yahoo.com and www.altavista.com. Defendant Various, Inc. ("Various") operates online communities where members can exchange personal advertisements. Various's Adult Friend Finder online community provides adult-oriented social-networking services to over 20 million members.
Stayart performed Internet searches for her name on Yahoo!'s search engines and discovered that her name "Bev Stayart" was listed in search results linked to sexual-dysfunction drugs and pornographic websites. Stayart emailed Yahoo! and requested the removal of these search results. Yahoo! responded that it neither judges Internet content for appropriateness nor censors offensive materials, but rather simply presents information as it appears on the Internet. Stayart then found her name on an Adult Friend Finder web page advertising members near her place of residence in Wisconsin and featuring pornographic images of unidentified women. Stayart sued for false endorsement, alleging that defendants knowingly and intentionally used her name on the Internet without her authorization.
ANALYSIS
The district court granted defendants' motion to dismiss and denied Stayart's motions to replead and for sanctions. The court first held that Stayart did not have standing to pursue a Lanham Act claim because she did not state an intent to commercialize her identity. The court noted that the Lanham Act is focused on anticompetitive conduct in a commercial context, but Stayart neither engaged in any commercial marketing of her identity nor alleged any intent to do so in the future. Stayart's complaint was instead based on the distasteful association of her name with pornographic images, which is not a commercial injury. Her emotional desire to prevent others from using her name in ways she did not condone did not create Lanham Act standing.
The district court then examined the likelihood of confusion, assuming Stayart had commercialized her identity, and held that none existed. Stayart's complaint explicitly disavowed any association with pornographic materials, sexual-dysfunction drugs, or sexually oriented dating services. The court thus found that no one who accessed these links could reasonably conclude that Stayart endorsed the products or services at issue. Stayart's argument that Various was liable for initial-interest confusion also failed, because a person looking for information about Stayart would not associate her identity with a link to an adult-oriented dating website.
Finally, the district court held that Yahoo! was entitled to immunity under the Communications Decency Act ("CDA") because it acted as an interactive-computer service. Yahoo! could not be held liable for failing to remove the offending search results after Stayart complained, the court reasoned, because it did not create the objectionable content and did not exert any control over the third-party websites that did so. Yahoo! merely displayed the content in the context of search results. However, the court did not extend CDA immunity to Various. Various's Adult Friend Finder website displayed a banner ad featuring Stayart's name and offensive images, and the court held that it was unclear at the pleadings stage whether Various itself created the content or if it merely displayed content created by a third party. Finally, the court denied Stayart's motion to replead her complaint since her injuries could not be remedied by the Lanham Act.
On appeal, Stayart argued that she had standing under the Lanham Act because she had a commercial interest in her name. But the Seventh Circuit, in a brief opinion, affirmed the district court's dismissal of Stayart's case and its holding that Stayart had no such commercial interest. Stayart claimed that her name had commercial value because of her extensive animal-rights and genealogy activities on the Internet, but the appeals court disagreed. Under Section 43(a) of the Lanham Act, a person or entity has standing only if they have a "reasonable interest to protect" in a purely commercial activity. Although Stayart's activities were well intentioned, they were not commercial. According to the Seventh Circuit, Section 43 is a remedy available only to "a commercial plaintiff who meets the burden of proving that its commercial interests have been harmed by a competitor," and Stayart did not meet this requirement. Stayart argued that because her activities included advocacy and boycotts, she was engaged in "services" and "commercial activities" that gave her standing to pursue her claim. Stayart relied on a Second Circuit decision involving a nonprofit group, but that case was inapplicable here because it involved a claim for trademark infringement under Section 32 of the Lanham Act, which Stayart did not assert in this case. Moreover, Stayart could not assert a claim under Section 32 because she did not own a registered mark for her name.
CONCLUSION
This decision illustrates the commercial aspects required for a party to bring a claim under Section 43(a) of the Lanham Act. Here, although plaintiff was a prolific activist, her activities did not give rise to a commercial interest in her name.
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