Take care Patently-O Commenters — Lawsuits are in the Air. 

by Dennis Crouch

Three commenters to John Welch’s TTABlog were recently sued for defamation after criticising an attorney Lee Thomason who lost a case before the TTAB. I know both John and Lee (who recently retired as a clinical professor at OSU) which makes this a bit more interesting and unfortunate.  Prof. Eugene Volokh has written more about the new lawsuit on his blog Volokh Conspiracy.

To be clear, the TTAB case was not simply lost on the merits. Rather, the TTAB issued a precedential decision cancelling Corcamore’s SPROUT registration as a sanction for bad behavior:

Respondent has been engaging for years in delaying tactics, including the willful disregard of Board orders, taxing Board resources and frustrating Petitioner’s prosecution of this case. In view thereof, Petitioner’s motion for sanctions in the form of judgment against Respondent also is granted pursuant to the Board’s inherent authority to sanction.

SFM v. Corcamore (TTAB 2018). Thomason represented Corcamore but was not personally sanctioned by the Board.

In his post, Welch did not identify Thomason by name but did make the comment: “What about a sanction against counsel?”

Three folks (all trademark attorneys) then added comments noting: (1) the attorney Thomason was a professor at The Ohio State; (2) the board “certainly ought to sanction” such behavior; (3) that the attorney is likely to blame because this is a procedure issue; and (4) that the attorney has been previously called out for unprofessional conduct.

The new defamation lawsuit filed in Federal Court in Kentucky accused Dreitler, Reidl, and deWolf of “volitional contacts with readers in Kentucky of the defamatory comments.” Prof. Volokh, whose expertise is defamation (inter alia), reviewed the filing and suggests that the claim will not stand, but promises an attempt to keep readers updated.

Read the complaint with exhibits here: https://reason.com/wp-content/uploads/2019/12/ThomasonvDreitlerComplaint.pdf

26 thoughts on “Take care Patently-O Commenters — Lawsuits are in the Air. 

  1. 8

    In other news, Elon Musk wins defamation suit after calling someone “pedo guy.” And yes, Streisand effect comes to mind. For the lulz.

    link to ipwatchdog.com

    2. Social Media insults constituting “heated rhetoric” are not defamation

    In Unsworth v. Musk, No. 2:18-cv-08048 (C.D. Cal. Dec. 6, 2019), a federal jury in the Central District of California found that Tesla CEO Elon Musk did not defame cave diver Vernon Unsworth by referring to him in a tweet as “pedo guy.” Unsworth’s attorney warned that the Musk verdict would worsen the trend in defamation law of insults on social media becoming “completely open season.” 798, 809, 811 (2002).

    1. 8.1

      I would have to lean on others’ expertise as to defamation/libel on a state law level before I compare California results with Kentucky “per se” charges.

      Without that hands-on Kentucky law knowledge, the complaint, while certainly long, does not seem detailed enough for me to spell out WHY the cause of action is sufficient for the court to initiate proceedings. This simply appears to be MORE a “you hurt my feelings” rather than any “you said something false in a malicious manner and I have suffered real injury” situation.

      I find it difficult to believe that Kentucky has some state law that could survive a “non-fighting words, this is my opinion, too bad you don’t like it” type of First Amendment defense to defamation/libel.

  2. 7

    An underlying premise of this complaint is that readers will accept equivocal blog comments as credible facts. Moreover, the complaint presumes that a hypothetical reader will take the time to identify the counsel in the TTAB proceeding, but cannot be bothered to check the accuracy of the blog comments. This complaint seems to be an example of the Streisand effect.

  3. 6

    I haven’t read the Complaint, but I appreciate the effort to try and quiet some of the unprofessional commenters that have come to plague this blog.

    If it was literal rather than rhetorical, the question of the blogger is remarkable. The TTAB doesn’t have the authority to sanction counsel; its authority is limited to the registration that is the subject of the cancellation proceeding. The TTAB can’t even refer the attorney to OED for discipline because trademark attorneys are not licensed by USPTO.

    The takeway here is not defamation; it’s the TTAB’s inability to control its own cancellation proceedings. The Board’s failure to decide this on the merits may only serve to make this drag on further while the Respondent appeals, and then possibly gets a remand. The Board’s decision doesn’t seem to adequately explain why a lesser remedy couldn’t have been imposed for the misconduct. It certainly will be an interesting reference point for strategies in defending against cancellations. Perhaps the USPTO will rethink its position that creating a trademark bar isn’t worth the trouble and expense.

    1. 6.1

      From TTAB Opposition proceeding 91234467:
      “..on motion pursuant to Trademark Rule 2.120(g), showing good cause, by a party from which discovery is sought, the Board may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the types of orders described in clauses (A) through (H) of Fed. R. Civ. P. 26(c). See, e.g., Pioneer Kabushiki Kaisha v. Hitachi High Technologies America, Inc., 74 USPQ2d 1672, 1674 (TTAB 2005).”

      1. 6.1.1

        “37 C.F.R. § 2.120(h) Sanctions.
        (1) If a party fails to participate in the required discovery conference, or if a party fails to comply with an order of the Trademark Trial and Appeal Board relating to disclosure or discovery, including a protective order, the Board may make any appropriate order, including those provided in Rule 37(b)(2) of the Federal Rules of Civil Procedure, except that the Board will not hold any person in contempt or award expenses to any party. The Board may impose against a party any of the sanctions provided in Rule 37(b)(2) in the event that said party or any attorney, agent, or designated witness of that party fails to comply with a protective order made pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. A motion for sanctions against a party for its failure to participate in the required discovery conference must be filed prior to the deadline for any party to make initial disclosures.”

  4. 5

    Lawsuits are in the air?

    Dennis — finally time to ban MM?

  5. 4

    deWolf just offered facts. No way is that going to stand.

    1. 4.1

      Seems like his argument against deWolf is based on her comment “re-publishing or re-posting” Dreitler’s comment and that her comment was per-se defamatory under Kentucky law.

      Does anyone know why adding a comment could be classified as “re-published or re-posting” and why deWolf’s comment is per se defamatory?

    2. 4.2

      If you read from point 63 on to about 70, you will see there are some good points brought up for defamation.

      But deWolf included? I guess it depends if also commenting counts as re-posting.

  6. 3

    Note state Anti-SLAPP laws.
    Wikipedia: “A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.[1] Such lawsuits have been made illegal in many jurisdictions on the grounds that they impede freedom of speech. … [Such] anti-SLAPP laws target tactics used by SLAPP plaintiffs. Common anti-SLAPP laws include measures such as penalties for plaintiffs who file lawsuits ruled frivolous and special procedures where a defendant may ask a judge to consider that a lawsuit is a SLAPP (and usually subsequently dismiss the suit).”

  7. 2

    Scare quotes around “real names” is priceless.

    This case is DOA. Those statements were lawyerly presentations of opinion. “If correct”…”the board ought to”…..”my guess”….

    The person filing the case should be sanctioned. Again.

    1. 2.1

      You have to remember that it is a lot easier to sue someone that is not famous for defamation. If the person is famous, then you have to show actual malice, which is almost impossible to show.

      The bar is much lower for normal people.

      1. 2.1.1

        That’s true, but defamation still has to be based on a statement of fact, not a statement of opinion. That seems the most obvious problem with this defamation suit.

  8. 1

    A notice of “take care” may extend to the editors of websites (as well as posters who routinely and wantonly ‘flame’ others without semblance of substantive content). In the case presented here, the accused posters each went by their “real names,” which of course made service easy.

    It may be a open question as to what may happen when anonymous (or pseudonymous) posters engage in what some may consider defamation, and the editors of the site know the real identities (as is the case on this blog).

    General “ISP” protection may not be extensive as believed due to the shaping of comments (in part by the subjective and uneven application of ‘editorial rules’). A suit against such usual perpetrators (such as Malcolm) may well succeed in obtaining Malcolm’s actual identity from the blog editors.

    This is not to say that one cannot be sharp (for example, I have been known to be sharp). But there is a clear difference between my sharp comments (based in fact) and Malcolm’s free-for-all ad hominem, and that difference draws a sharp distinction as to potential suits and surrendering of identities.

    1. 1.1

      Quite ironic, since your “sharp” comments have at times included false statements of professional misconduct. You are correct that a false internet name is not a protection.

      1. 1.1.1

        I have made Zero false statements Paul.

        Zero.

        I invite you to show otherwise.

        1. 1.1.1.1

          Easy. E.g., at least twice falsely accusing me on this and Gene’s blog of engaging in unlicensed PTO practice even though you already knew I was fully retired from PTO practice.

          1. 1.1.1.1.1

            Try again Paul — in every instance I used your own words.

            Go back and check my friend.

            1. 1.1.1.1.1.1

              No one is going to believe that.

              1. 1.1.1.1.1.1.1

                It’s not a matter of belief Paul – simply a matter of fact — fact that does not support your p00r widdle feelings.

          2. 1.1.1.1.2

            “I have made Zero false statements”

            Yeah, at one time he was paid to make stuff up. But now he’s no longer paid and the stuff he makes up is just a product of the mental illness. He’s admitted that. Don’t take it personal.

            1. 1.1.1.1.2.1

              Hi Shifty, happy new year.

    2. 1.2

      On that topic it should also be noted that the Gravatar system used on this blog is not secure. Anonymity minded posters should not use e-mail addresses associated with their real identities. Doing so may allow for identification without involving any third party.

      1. 1.2.1

        Interesting post, TBPOV.

        Your post must have been stuck in a filter for some reason, as I would have responded sooner had I seen it earlier.

        But quite frankly, I do not care about the “real identity” of a poster and more often find that those who “use their real names” may often be engaged in a fallacy by trying to borrow “authority” from the mere fact of the choice of using a “real name.”

        And while certainly not true of all who make such choice, the choice of real name or not is NOT any meaningful indicator of value of blog-posted content.

        Rather instead, I opt to give credit less by the “authority of real name” use and more by the content of any particular posting.

        I will grant that in some instances, “real name” DOES bring along particular authority, given that there may be “outside of blogging” work that can be readily found and associated with the “real name” and postings can be read in light of those “outside of blogging” items (much like claims being blogging, and a specification being the sum total of an identified person’s views). Dave Boundy would be a good example, as his “off-blog” stuff is often WAY better than his blogging stuff.

        In some instances though, “real name” may NOT bring additional particular authority from outside the blogosphere. For example, Greg DeLassus (also “dozens” – but I think that moniker is used when Greg runs into this blog’s “Count” filter), has NO “outside of blogging” items that help his “authority” on matters that he blogs about. Quite in fact, one can readily see (because Greg has “whipped out his credentials”) that OFTEN Greg will blog about particular points that he LACKS authority of, and the “but I use my real name” is merely an attempt at the fallacy of “Borrowed Authority.”

        Some actually attempt to use “I use my real name” as an attempt to NOT give credit to actual content in the blogosphere (Paul Morgan comes to mind). This is a different aspect of the “Borrowed Authority” fallacy.

        In any case, actual content is more important, and any particular “real name,” “anonymous posting” or “pseudonymous posting” (even using “anon” as a pseudonym in a clever tongue in cheek manner) will LIKELY be followed on a blog for its immediate content.

        The “warning” I advanced at post 1 has more to do with the notion that blog editors that shape the content of a blog by having an UNEVEN enforcement of “blog rules” may eviscerate any perceived protections from turning over known (to the blog editor) identification information that IS unknown to the general blog reader. It was less about any third party entity’s ability to hack into a blog editor’s domain controls and “find out” an identity.

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