by Paul Alan Levy
The CBS affiliate in Atlanta has been running a series about Lifestyle Lift, a company previously discussed in this blog because of its attempt to suppress criticism by filing spurious trademark claims against Justin Leonard, who operated the consumer commentary site infomercialscams.com where criticisms as well as praise for Lifestyle Lift could be posted. Lifestyle Lift has now sued the Atlanta news station for having had the temerity to provide both sides of the story, and the station has, in turn, run a story on Lifestyle’s penchant for suing its critics. (See Part 5 of the story)
Contact with the station about their series inspired me to do a Google search for Lifestyle Lift for the first time since we defended Leonard against the Lifestyle Left suit. The discussion pages about Lifestyle Lift at infomercialscams.com and RealSelf.com – another web site previously targeted by Lifestyle for trademark litigation – remained near the top of the unpaid search results, but I was intrigued to notice what seemed to be a new consumer complaint site at the top of the sponsored links:
But clicking on this first ad leads not to a complaint site, or to a balanced review site, but to a web page created by Lifestyle Lift itself. The page not only does not contain any complaints, it does not even discuss any complaints, even in the course of explaining why any complaints are ill-founded. Toward the bottom of the page is hyperlinked anchor text that reads “Read Lifestyle Lift Client Reviews,” but that link leads to another Lifestyle Lift created page that provides only positive reviews of the product. The “former Stanford doctor” who supposedly speaks out is in fact the medical director of Lifestyle Lift.
Such use of misleading Google ads is not new. While infomercialscams.com was defending against Lifestyle Lift’s trademark litigation, we noticed a keyword ad that stated “Infomercial Scams - Lifestyle Lift complaints,” showing the web address http://www.myfaceliftstory.com. The banner across the top of that site read “Consumer Alert Report: what every consumer should know about … Lifestyle Lift,” and the web site appeared to be offered by an independent user who was very satisfied with her experience, followed by numerous “reviews” all of which were positive (in fact, the design was similar to other web sites offered by Lifestyle Lift itself). The only function of the sponsored ad seemed to be to draw consumers interested in learning about possible criticisms of Lifestyle Lift away from the commentary pages to be found in the unpaid results.
Trademark holders have frequently used litigation to suppress the use of keyword ads to promote advertising by their competitors, even when the ads were not at all misleading. We have argued in the past that there is nothing inherently misleading about the use of keyword advertising, so long as the ads themselves are non-deceptive. If a company wants to use non-deceptive keyword advertising to draw attention to web pages that explain why criticisms are misinformed, more power to it. But such deceptive keyword advertising, as part of an overall strategy to suppress criticism, is deplorable.
Are there viable theories for pursuing the use of deceptive keyword ads by the trademark holders themselves? A number of theories come to mind. Consumers might bring a deceptive marketing complaint to the FTC, or might sue under such state consumer laws as section 17500 of the California Business and Professions Code. Or, perhaps a competitor of Lifestyle Lift might contend that the Google ads are deceptive promotions and file suit under section 43(a)(2) of the Lanham Act.