In a recent case, a national propane supplier reached a settlement with an online consumer complaint website, ending a dispute over deceptive trademark practices that allegedly drove internet traffic away from the plaintiff’s website and to both its competitors and the consumer complaint website. Specifically, AmeriGas Propane LP (AmeriGas) and Opinion Corp. reached an undisclosed settlement, ending AmeriGas’s suit in the US District Court for the Eastern District of Pennsylvania over Opinion Corp’s “Pissed Consumer” website, which AmeriGas alleged had been employing a number of deceptive methods to siphon internet traffic from AmeriGas’s website.
Opinion Corp’s website (www.pissedconsumer.com) allows consumers to log on and post complaints regarding products and services. The website compiles all complaints related to individual companies and displays the complaints on a company-specific page. At the top of this page, Opinion Corp lists the company’s name, the company’s industry, a summary of the company’s business, along with real-time information about the total number of complaints and claimed losses logged by the website’s users against that company. The company-specific page also includes a list of every individual complaint.
In its complaint against Opinion Corp, AmeriGas alleged a variety of activities that, among other things, infringed AmeriGas’s trademark in violation of state and federal law. First, AmeriGas claimed that Opinion Corp encouraged consumers to post negative critiques of companies on the Pissed Consumer website, associated the comments with the AmeriGas brand, and then charged companies, like AmeriGas, a premium to have the negative comments removed. Second, AmeriGas claimed that Opinion Corp illegally coupled the AmeriGas trademark with advertisements for AmeriGas’s competitors on the Pissed Consumer website, leading to consumer confusion and generating income for Opinion Corp, as the competitors’ ads were posted using a revenue generating online advertising program. For example, on the AmeriGas-specific page, advertisements for Thompson Gas and BP are listed next to a description of AmeriGas and postings of AmeriGas-specific user complaints. Finally, AmeriGas alleged improper search engine optimization, including Opinion Corp’s linking of random, unrelated domain names to Pissed Consumer and reposting the comments from the Pissed Consumer website on those webpages, resulting in Pissed Consumer being returned as one of the top results as part of an internet search for AmeriGas. By buying hundreds of unrelated domain names and linking them to the Pissed Consumer website, Opinion Corp inflated Pissed Consumer’s relevancy as determined by search engine algorithms even when the inbound links from these websites had nothing to do with public interest in Pissed Consumer.
Opinion Corp attempted to have the complaint dismissed by arguing that its marketing activities did not violate trademark law because (1) its use of the AmeriGas trademark was permissible, normative fair use, (2) there was no evidence that AmeriGas’s customers would be confused by Opinion Corp’s use of the AmeriGas trademark, and (3) Opinion Corp could not be guilty of contributing to infringement by unnamed third-party advertisers. While the judge agreed that Opinion Corp did not contribute to third parties’ trademark infringement, the judge disagreed with Opinion Corp’s other arguments. The judge concluded that the court could not determine whether Opinion Corp’s use of AmeriGas’s trademarks was fair use or likely to cause consumer confusion without a more thorough factual inquiry, and allowed the case to proceed to the next stage of litigation. In an effort to avoid trial, the two parties agreed to a settlement resulting in the court’s dismissal of the case.
Companies should be careful to monitor consumer complaint websites to ensure that their marks are not being improperly used. By keeping a close watch on these types of websites, companies can protect their brands by preventing traffic from being re-directed to competitor websites.