Federal Judge Rules Against Cosmetic Surgery Firm, Dismisses Trademark Claim Against Consumer Web Site

May 5, 2008

Federal Judge Rules Against Cosmetic Surgery Firm, Dismisses Trademark Claim Against Consumer Web Site

Consumer Site Has First Amendment Right to Publish Reviews, Public Citizen Argued

WASHINGTON, D.C. – A company that markets cosmetic surgery through TV infomercials cannot use trademark law to squelch criticism on the Internet of its procedures, a federal judge in Michigan ruled Friday, dismissing the company’s lawsuit against InfomercialScams.com.

Lifestyle Lift Holding Inc. had claimed that Justin Leonard, owner of InfomercialScams.com, had violated its trademarks by using its name to identify online reviews of its trademarked “lifestyle lift” cosmetic surgery procedure on his consumer 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, which represents Leonard along with local counsel Barbara M. Harvey, had argued that the First Amendment protects the mention of the company’s trademark on Leonard’s Web site.

In ruling Friday from the bench in favor of Leonard, Judge Arthur J. Tarnow said that the average person is unlikely to mistake the use of the company’s name on Infomercialscams.com as anything other than an independent review. Leonard’s use of the Lifestyle Lift name does not dilute the brand and is not false advertising, the judge said.

Public Citizen attorney Paul Alan Levy, who appeared Friday before the U.S. District Court for the Eastern District of Michigan, called the decision a victory for free speech on the Internet.

“This sends a clear message to companies that would try and bully their critics by filing phony trademark claims,” Levy said. “The speed and ease with which our client won this case should encourage other Web site operators to speak openly and frankly on matters important to consumers.”

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.

To read the case documents, go to https://www.citizen.org/our-work/litigation/cases/lifestyle-lift-holding-inc-v-leonard-fitness-inc-and-justin-leonard.