Federal Court Protects Blogger Under Lanham Act
 
January 8, 2008
 
Corinne R. Simon- Jacksonville

A South Carolina federal court has held that a blogger qualifies as a journalist under the Lanham Act, and threw out the claim under the law’s exemption for “forms of news reporting and news commentary.” This appears to be the first published court opinion protecting a blogger as a journalist under the statute.

The Lanham Act is a federal law that governs false statements made in competition for sales. BidZirk, an auction listing company, sued blogger Philip J. Smith for violation of the Lanham Act, defamation and invasion of privacy because of a four-part series Smith published on his blog titled “Special Report: You Gotta Be Beserk to Use an eBay Listing Company! The Whole Story.” The article detailed Smith’s experience using BidZirk to sell items on eBay, and his interactions with and opinions of BidZirk’s president.

Under the Lanham Act, “[a]ny person who … uses in commerce any … symbol … or any … false or misleading description of fact, or false or misleading representation of fact, which … in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of … another person’s goods, services or commercial activities” maybe liable for damages. BidZirk alleged that its trademark was famous and distinctive, that Smith used it in connection with a commercial use and that Smith’s use diluted the trademark.

The Lanham Act specifically exempts from liability anyone who publishes “news reporting and news commentary,” but the law does not define those terms or specify who is protected. Applying a functional analysis, the court examined the content of the material, rather than the format, to determine the blog qualified as journalism.

In doing so, the court considered Smith’s intent in writing the article, stating that “not all bloggers are journalists. However, some bloggers [like those published on CNN.com] are without question journalists.”

In the opinion published in October 2007, the court determined there was “no evidence that the sole purpose of the article was to denigrate BidZirk.” Rather, “[t]he article posted by Smith concerning [BidZirk was] written for the purpose of conveying information to the public” about the positive and negative aspects of dealing with an eBay listing company. The court specifically pointed to the fact that Smith engaged in background research and even provided readers a checklist on his blog for using an eBay listing company and tips for selling items on eBay.

“Smith felt that what he learned from his experience with BidZirk would be helpful to others in dealing with an eBay listing company. The fact that Smith reports negatively about his experience with BidZirk does not dictate that the article’s function or intent was not news reporting or news commentary.”

The court also denied BidZirk’s claims against Smith for defamation, holding that Smith’s characterization of BidZirk’s president as a “yes man” could not be proven true or false and thus was not a statement of fact capable of sustaining a defamation claim. The court also dismissed BidZirk’s claim of false light invasion of privacy, as the tort is not recognized in South Carolina.

For more information, email Corinne R. Simon at corinne.simon@hklaw.com or call toll free, 1-888-688-8500.