by Paul Alan Levy
A few months ago I discussed the denial of Houlihan Smith’s motion for a preliminary injunction against Julia Forte for allowing allegedly defamatory postings to remain on the 800Notes.com and whocallsme.com web sites. District Judge Virginia Kendall, United States District Court for the Northern District of Illinois, decided that Forte was protected from suit by 47 U.S.C. § 230 and that re-labeling its defamation claims as trademark claims (or right of publicity claims, or misappropriation claims) was not enough to evade section 230. Judge Kendall’s oral opinion was particularly significant for her recognition of the distinction between a use of a company’s name that harms the reputation of the mark — constituting tarnishment — and a use that only harms the reputation of the company, which is only defamation (if that). Her oral opinion also contained useful discussion of the distinction between commercial and non-commercial use, drawing by analogy on First Amendment non-commercial speech doctrine, and relied on Prestonettes v. Coty to support the truthful use of a mark to identify the topic of discussion.
We have just received the transcript of the hearing; the oral opinion now appears on the Litigation Group web page about the case.