Invent and AbsolutelyNew compete in the market for “consulting with inventors of ideas to assist them in obtaining legal protection for their idea, and to locate manufacturers and retailers who may be interested in the new product.” AbsolutelyNew’s website, www.SellMyInventionIdea.com., included a copy of Plaintiff’s trademark, followed by this negative commentary about Invent:
This company has been in business for only 7 months, but the testimonials on their website are from customers that have been satisfied with them for over 3 years in some cases. Obviouslythese are fake testimonials. This company is lying to misrepresent their potential clients,they're not certified by the BBB or the United Inventors Association. Invent Worldwide Consulting has scam and fraud written all over it! Here is the link to their “testimonials.” [link provided]
When Invent complained, AbsolutelyNew removed the logo, but added, “We cannot post up the testimonials that are clearly fake because of a copyright complaint from his company. Obviously they're not happy with this website exposing their shady business practices and protecting inventors from scams.”
Invent also alleged that Googling “Invent Worldwide Consulting” could take a user to AbsolutelyNew’s site, and Invent believed that AbsolutelyNew engineered this result by using Invent’s trademark in its source code. One of Invent’s clients allegedly reported that a representative of AbsolutelyNew spoke to the client by telephone and told the client that Invent was a “scam” and a “clearinghouse,” reducing the client to tears.
The court’s brief decision held that Invent’s bogus trademark claim couldn’t survive a motion to dismiss: these allegations could not plausibly support a claim for likely confusion. Allegations of false and disparaging statements about Invent couldn’t support the conclusion “that AbsolutelyNew has attempted to use Plaintiff’s mark as its own or that consumers will otherwise be confused by the source of the services either party provides.
While the federal and state false advertising claims did survive the motion to dismiss, the dropped copyright claim could come back to haunt Invent, depending on the facts. If Invent initially asserted a copyright over the testimonials (which, of course, couldn’t possibly be infringed by a link to Invent’s own site on which the testimonials were posted) … who was the author of those testimonials? Or is this just another case of copyright abuse? (Invent did allege a copyright claim, but didn't argue against dismissal on the motion to dismiss.)