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Tuesday, November 6, 2007

District Court Grants Summary Judgment To Blogger in Misappropriation Case

A district court has ruled that a blogger's use of a trademark did not support a claim for misappropriation and has granted his request for summary judgment in Bidzirk v. Smith. "BidZirk alleges a claim under the Lanham Act for damages and an injunction, alleging that Smith improperly placed BidZirk’s trademark on his blog. In addition, Schmidt has sued for defamation alleging that Smith published false and derogatory statements about Schmidt on his blog. Finally, Schmidt and Jill Patterson (“Patterson”) have sued for invasion of privacy alleging that Smith linked their picture to the blog. The link was an article with a picture of Schmidt and Patterson in it. Smith failed to answer and on February 16, 2006, a default was entered by the clerk. The court set aside entry of default on February 27, 2006, and allowed Smith time to answer."

Smith had called Schmidt a "yes man" on his blog. With regard to the defamation claim, because Smith's statements about Schmidt could not be proven false, Schmidt could not recover for defamation. "Further, even if the term “yes man” could be verified as true or false, it is plainly not defamatory. Immediately after stating that Schmidt seemed like a “yes man,” Smith describes Schmidt as possibly tech savvy, which is a positive statement about Schmidt. In addition, Smith stated that in the ebay industry many sellers commonly over promise and under deliver. However, Smith never said that Schmidt over promised and under delivered in this transaction. None of Smith’s statements “reduce[d] [Schmidt’s] character or reputation in the estimation of his friends or acquaintances, or the public, or to disgrace him, or to render him odious, contemptible, or ridiculous.”...Based on the foregoing, the court finds that Smith’s statements were patently not defamatory."

With regard to the invasion of privacy claim, the court said: "In South Carolina, three separate and distinct causes of action can arise under the rubric of invasion of privacy: (1) wrongful appropriation of personality; (2) wrongful publicizing of private affairs; and (3) wrongful intrusion into private affairs.” .... In their complaint, Schmidt and Patterson allege a claim for wrongful appropriation. However, in their memorandum in opposition to Smith’s summary judgment motion, Schmidt and Patterson concede that they have no invasion of privacy claim arising under the three causes of action listed above....Instead, Patterson and Schmidt allege a claim for false light invasion of privacy. No South Carolina court has recognized a cause of action for false light invasion of privacy. Therefore, this claim fails as this cause of action does not exist under South Carolina law. Further, to the extent South Carolina would recognize this cause of action, the claim is wholly without merit." With regard to any other invasion of privacy claim, Smith linked to another website which contained material about Schmidt and Patterson; Schmidt and Patterson had consented to that website's inclusion of material about them (their photo). "Smith did not transport the picture to his blog. Instead, Smith’s blog contained a link that readers could click on that takes the reader to the site where the article and picture are located....The court finds that “a person who places a photograph on the Internet precisely intends to forsake and renounce all privacy rights to such imagery, particularly under circumstances . . .where [Patterson and Schmidt] did not employ protective measures or devices that would have controlled access to the Web page or the photograph itself.”....Further, there is no evidence that Smith’s link to the article containing the picture of Patterson and Schmidt was done to benefit Smith in any way. Based on the foregoing, the court finds that Schmidt and Patterson consented to the display of their picture on the internet."

With regard to the Lanham Act claim and the request for an injunction, the court ruled that "[e]ven if Smith has infringed BidZirk’s mark, the court finds that this infringement is excused by a statutory defense. Under § 1125(c)(4)(C), no “forms of news reporting and news commentary” are actionable under § 1125. These terms are not defined in the Lanham Act. Further, there is no published case deciding whether a blogger is a journalist. However, in determining whether Smith was engaged in news reporting or news commentating, the court has applied the functional analysis suggested by commentators and the Plaintiffs in their memorandum in support of a preliminary injunction, which examines the content of the material, not the format, to determine whether it is journalism." The court found that Smith did have a journalistic or investigative reporting purpose in publishing the blogpost.

The court also sanctioned the plaintiffs' attorney for filing a lis pendens against Smith's real property (a condominium). "The court finds that the degree of Plaintiffs’ counsel’s culpability weighs heavily in favor of sanctioning the Plaintiffs’ counsel, Kevin Elwell (“Elwell”). Elwell is a competent attorney who knew or should have known with the most basic research that his actions were improper. In addition, after Smith moved to strike the lis pendens, Elwell argued in court that the lis pendens was proper. Elwell had no basis to support his position....Further, the court finds that Smith has been prejudiced by the filing of the lis pendens. The title to his property was clouded for over six months. Smith alleges that during that time he was attempting to sell his property. Moreover, the public interest in preventing legal counsel from filing improper lis pendens and encumbering property is great. A lis pendens is a very powerful document and the statute is strictly applied because a lis pendens clouds the title to property. There is no evidence that Elwell’s client is responsible for Elwell’s wrongful conduct. However, taking into account the facts and the factors listed above, the court finds that based on Elwell’s grossly improper conduct, he should be sanctioned in the amount of $1,000.00 payable immediately to the Defendant."

Mr. Smith represented himself.

The case is Bidzirk v. Smith, C.A. No. 6:06-109-HMH (U.S.D.C., D.So. Car.)(2007). Read the entire ruling here.

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