Dental Firm Tries To Dodge Section 230 With Trademark Claims; Runs Headfirst Into Anti-SLAPP Law

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Abbey Dental of Las Vegas doesn't like the number of negative reviews that are piling up at Pissed Consumer. But that's about all it (and its lawyers) know. It seems to understand that taking on Pissed Consumer with a defamation lawsuit would be a complete failure, as would be any effort it made to sue individual reviewers. Nevada has an anti-SLAPP law in place, which would fit Abbey Dental's attempt to artificially resuscitate its reputation to a tee.So, instead of handling this in the normal way (which would also be the route least likely to succeed), the company has decided to take a more oblique approach: a lawsuit filed in federal court (to better dodge the state's anti-SLAPP law) centered on a variety of tremendously stupid trademark infringement claims.Pissed Consumer, represented by Marc Randazza, has decided to swerve as well -- the better to attack Abbey Dental's circuitous claims head on and ensure it doesn't escape the anti-SLAPP statute it's so desperate to avoid.As is noted in the first footnote of Pissed Consumer's motion to dismiss/summary judgment request [PDF], the defendant and its lawyer have given Abbey Dental plenty of time to back away from the precipice.

[Abbey Dental's] complaint was filed on October 27, 2015. Shortly thereafter, Defendant warned Plaintiff that the case was frivolous and would be subject to an Anti-SLAPP motion. (See Email from Randazza to Amin dated Jan. 6, 2016, attached hereto as Exhibit 1.) Defendant spent more than a year trying to get Plaintiff to come to its senses. After eight extensions seeking to avoid this, Defendant finally filed its first Anti-SLAPP motion. (ECF No. 25.) Plaintiff responded by filing an Amended Complaint 1 day later. The Amended Complaint simply compounds the problem, and cures nothing.

Abbey argues that using the words “Abbey Dental” on a web page with consumer reviews about Abbey creates a likelihood of confusion in the minds of consumers by making them think that the web site is affiliated with Abbey. This makes no sense. This use is clearly nominative fair use.[...]The first issue is Opinion’s use of search result copy on Google. The copy that accompanies a search result for the term “abbey dental” that leads users to Opinion’s web site informs users that they will arrive at a site with reviews of this particular business. The Ninth Circuit summed up the weakness of Abbey’s argument here when it recognized that internet users:fully expect to find some sites that aren’t what they imagine based on a glance at the domain name or search engine summary. Outside the special case of . . . domains that actively claim affiliation with the trademark holder, consumers don’t form any firm expectations about the sponsorship of a website until they’ve seen the landing page – if then.[...]Though it is not an element of an infringement claim, Abbey also alleges at that Opinion is diverting Internet users to Abbey’s competitors by providing advertising on its web site. Even if this were an element of an infringement claim these allegations would not help Abbey. Opinion does not create these advertising links, and they are tailored to the search patterns of visitors.

[T]here is nothing actionable about Opinion’s use of the Abbey Dental mark in its sub-domain [abbey-dental.pissedconsumer.com]. Tabari is instructive here, and observed that,when Internet users search for a web site through a search engine the consumer will click on the link for a likely-relevant site without paying much attention to the URL. Use of a trademark in the site’s domain name isn’t materially different from use in its text or metatags in this context; a search engine can find a trademark in a site regardless of where exactly it appears.

Abbey’s argument on this point is frivolous on its face; Opinion’s use is plainly a nominative fair use of the “Abbey Dental” mark; there is no way to have a review page about a business without naming the business. Opinion does nothing to create any sense of affiliation or sponsorship by the thousands of reviewed businesses.

Anti-SLAPP statutes apply in federal court. See Batzel v. Smith, 333 F.3d 1018, 1025-26 (9th Cir. 2003); see also Thomas v. Fry’s Elecs., Inc., 400 F.3d 1206, 1207 (9th Cir. 2005). NRS 41.650 provides that a person who engages in conduct protected under Nevada’s Anti-SLAPP statute “is immune from any civil action for claims based upon the communication” (emphasis added). NRS 41.635-670 creates a substantive immunity from certain categories of lawsuits and is substantive in nature.

Abbey’s claims are centered on the theory that Opinion is liable for directing consumers to through its use of industry-standard sub-domains and Google ad copy. To ensure that users actually see reviews about a company, a consumer review web site must use a given business’s name in a sub-domain and ad copy. To restrict such a site from doing so would be to effectively remove web pages containing reviews of the business from the Internet, as no one would be able to find them while performing an Internet search. Abbey’s prayer for relief makes this even clearer, as it seeks both a preliminary and permanent injunction barring Opinion from using Abbey’s name on pissedconsumer.com.

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Court Says Abandoned Phone Locked With A Passcode Still Has Expectation Of Privacy

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A Florida Court of Appeals has handed down a somewhat surprising ruling [PDF] in a case centering on evidence obtained from a teen's cellphone. (via FourthAmendment.com)Two juveniles fled their vehicle during a traffic stop, with one of them (referred to as "K.C." in the ruling) leaving behind his cellphone on the car's seat. This phone -- whose lockscreen featured a photo of someone who "looked similar" to "K.C." -- was taken by the officer.Several months later, the PD's forensic lab was asked to determine ownership of the phone. The phone was locked with a passcode, but the lab was able to unlock and retrieve this information. No warrant was obtained and the search apparently wasn't limited to determining ownership. The use of evidence obtained from the phone was challenged, but the state felt it had plenty of warrant exceptions to save its search.

K.C. was charged with burglary of a conveyance. He moved to suppress the contents of the cell phone, from which the police had obtained his name, on the ground that the phone was searched without a warrant. After the presentation of the foregoing facts, the prosecutor argued that the phone was abandoned, and the owner had no expectation of privacy in the phone once abandoned.

In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F.2d 202, 203 (C.A.2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.

Our supreme court has recognized that “[t]he test for abandonment is whether a defendant voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy…"[...]While we acknowledge that the physical cell phone in this case was left in the stolen vehicle by the individual, and it was not claimed by anyone at the police station, its contents were still protected by a password, clearly indicating an intention to protect the privacy of all of the digital material on the cell phone or able to be accessed by it. Indeed, the password protection that most cell phone users place on their devices is designed specifically to prevent unauthorized access to the vast store of personal information which a cell phone can hold when the phone is out of the owner’s possession.

Where a cell phone is “abandoned,” yet its contents are protected by a password, obtaining a warrant is even less problematic. In this case, how difficult and inefficient would it have been for the officer to obtain a search warrant, when the cell phone in question was in police possession for months?

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