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Cosmetic Surgery Company Cannot Use Trademark Law to Silence Internet Critics, Public Citizen Tells Court

Dec. 13, 2007

Cosmetic Surgery Company Cannot Use Trademark Law to Silence Internet Critics, Public Citizen Tells Court

Public Citizen Urges Court to Dismiss Suit Against Web Site Operator Who Provides Forum for Consumers of Infomercial Products

WASHINGTON, D.C. – A company that markets cosmetic surgery through TV infomercials is wrongly trying to use trademark law to squelch criticism of its procedures on the Internet, the consumer group Public Citizen told a Michigan court Thursday.

If Michigan-based Lifestyle Lift Holding Inc. is allowed to pursue its claims of trademark violations, it could have far-reaching, harmful effects on anyone who wants to criticize a product on the Web or in a newspaper or magazine article.

“They want to make sure that criticism of their company isn’t visible on the Internet, but they don’t have a right to do that,” said Paul Alan Levy, an attorney with Public Citizen. “Consumers have a First Amendment right to criticize a company’s products online.”

Public Citizen, along with local counsel Barbara M. Harvey, filed a brief Thursday in the U.S. District Court for the Eastern District of Michigan on behalf of Arizona resident Justin Leonard. Leonard’s Web site at www.InfomercialScams.com allows users to read and post reviews of infomercial products. His sites are widely read and have been featured in papers such as The New York Times and on influential consumer-information Web sites.

Lifestyle Lift claims that Leonard violates its trademarks by using its name to identify online reviews of its trademarked “lifestyle lift” cosmetic surgery procedure on his consumer-oriented Web site. Some patients of the facial cosmetic surgery procedure complained on Leonard’s site about pain, scarring and a general failure to improve their appearance. The company is affiliated with plastic surgeons in 21 states, including California, Florida, Massachusetts, New Jersey, New York, Pennsylvania and Texas.

Public Citizen has asked the court to dismiss the complaint because the First Amendment protects the mention of the company’s trademark on Leonard’s Web site, because Leonard has not violated trademark laws, and because the court has no jurisdiction over Leonard in Michigan.

If courts allow these types of suits against Web site operators, any company dissatisfied with a bad review of its products or services could use federal trademark law to halt publication of an unwanted review, Public Citizen told the court. Among the company’s complaints is that the reviews on Leonard’s Web sites can be found in Internet search engines, such as Google.

Companies should not be allowed to use unfounded lawsuits to intimidate Web site operators and those who post on Internet forums with unfounded lawsuits, Levy said.

“The real burden on the Web site operator is having to spend money to hire attorneys and go to court,” Levy said. “These companies just want critics to shut up and go away.”

READ the motion to dismiss.