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September 2018
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Express Homebuyers Wins Again As Court Decides Its Allowed To Have Opinions

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We just recently discussed the very good ruling by Judge T.S. Ellis in a trademark lawsuit between Express Homebuyers USA and WBH Marketing Inc. over the latter's once-valid trademark, "We Buy Houses." Ellis not only concluded that Express Homebuyers' advertising that it too "buys homes" was not trademark infringement, but also went so far as to proclaim that WBH's mark was generic and invalidated it. The generic nature of the mark was obvious and it's a wonder the USPTO ever approved it, but in the end the ruling was good.Separately, WBH sued Express Homebuyers for false advertising, trade libel, and conspiracy as well. Much of these accusations either relied on the trademark WBH once held or targeted Express Homebuyers' discussion of the dispute in public. In yet another good ruling from Ellis, however, those claims were all tossed out as invalid.

In a fifteen-page written opinion, Judge T.S. Ellis, III of the Eastern District of Virginia concluded that WBH failed to present any facts to support its damages claims. On the false advertising claims, Judge Ellis found that WBH failed to establish any correlation between the alleged false statements and actual harm to WBH. Citing the testimony of its CEO, Jeremy Brandt, WBH could not establish and did not know “who chose not to contact or do business with WBH” in light of the alleged false advertisements.The court also found that statements such as WBH was “wrong” in enforcing its trademarks, and that WBH was a “trademark bully” were non-actionable opinions because they were nothing more than EHB’s “subjective assessment of WBH’s commercial activity.” Indeed, the court noted that the undisputed facts established that Jeremy Brandt made statements such as “That’s how we roll. Facebook page – gone.” Additionally, Dev Horn, another executive at WBH, stated that WBH needed to “scare the sh*t” out of certain real estate investors and that WBH should “GET THOSE MOTHER F*****S,” referring to specific real estate investors.
In other words, not only is Express Homebuyers allowed to have an opinion about the legal proceedings WBH forced it into, but those opinions have been validated now by the court. Not only is it allowed to call WBH a trademark bully, but Ellis seems to agree with that opinion. With trademark bullying far too often being a successful enterprise for large companies, it's quite nice to see one get knocked around in court like this. Not out of pure pleasure, of course, but for what such rulings should signal to the larger trademark bullying community out there.Thankfully, with this ruling, it seems this entire dispute has now come to a close, with WBH losing at every turn.
Because those claims were dismissed, the court likewise dismissed WBH’s claims for business and common law conspiracy under Virginia law, concluding that there was no underlying legally actionable conduct.Brad Chandler, CEO of Express Homebuyers, said, “I’m big on justice in the world and today justice has been served for Express Homebuyers and real estate investors across the United States.”
That's exactly correct. Rulings going the other way would have put one hell of a burden on the real estate industry in America writ large.

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posted at: 12:34am on 08-Sep-2018
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Court Denies Politician's Attempt To Dismiss Lawsuit Over Banning Critics From His Facebook Page

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Late last year, Maine governor Tom LePage was sued by the ACLU and two of the state's residents. It wasn't over his vocalized desire to shoot a local political cartoonist or his tone deaf handling of the Net Neutrality debate. This lawsuit deals with LePage's moderation of his official Facebook page. LePage (or more likely, his staff) swing the banhammer pretty freely, blocking users and deleting critical comments.

If LePage is using this Facebook page as an official extension of the governor's office, he can't engage in this kind of moderation without doing damage to the First Amendment. LePage has tried to claim the page isn't official, but it's been used to deliver official statements from his office. In addition, the page states it's Lepage's "official" page, and the page itself has been "verified" as official by Facebook, which requires the input of LePage and his office to make his official page official.

So, when LePage argues it's just some sort of unofficial campaign page with no ties to his current position in the government -- as he did in his motion to dismiss -- it's a Hail Mary play. The court isn't going to buy these assertions, not when there's plenty of evidence pointing to the Facebook page's officialness. For an official mouthpiece of a government entity, blocks and bans of critics aren't just a PR black eye, it's likely a First Amendment violation as well.

In addition, as the court points out in its ruling [PDF], claiming all content posted by third parties as comments will somehow be construed by page visitors as government speech is just as ridiculous as claiming the page isn't official. (h/t Adam Steinbaugh)

Based solely on the allegations in the Complaint, the Court must disagree with the premise that all of the information on the Governor’s Facebook page constitutes his speech. The posts on the Facebook page are labeled with the name of the person who posted them, and the Governor’s speech—his posts—is distinct from the private citizen posts.

[T]he Court is similarly unpersuaded that the Governor incorporates or adopts the comments and posts of others as his own speech simply by not deleting them after the speakers post them to his page. Such posts are readily distinguishable from a city’s acceptance of a donated monument for display in a public park or a town’s inclusion of private-company hyperlinks on the official town website—both of which have been held to be government speech. Pleasant Grove City, 555 U.S. at 468; Sutliffe, 584 F.3d at 330. Citizens posting to the “Paul LePage, Maine’s Governor” page control the content and timing of their post without any prior review from the Governor. The page acts a passive conduit for the posts.

The ruling goes on to point out that having dissenting views on his page in no way prevents Governor LePage from getting his message out. Even without moderation, page visitors cannot "drown out" official posts or otherwise engage in a heckler's veto, thus affecting the governor's First Amendment rights. Visitors do not control the page and aren't able to post anything other than comments or questions. LePage's free speech is as free as ever, even if he can't control what others say when commenting on his posts.

The court is also unimpressed with LePage's argument that banning dissenting commenters or deleting critical comments is somehow protected speech. As the court sees it, considering the facts it has on hand, the only speech getting squelched is that of page visitors -- and apparently only those who have nothing nice to say about the governor or his messages.

The Governor does not dispute the Plaintiffs’ claims that his deletion of their posts and banning of them from his page constituted viewpoint discrimination. Given this and the Court’s conclusion that forum analysis does apply, the Court finds that the Plaintiffs plausibly stated a claim for violation of their free speech rights under the First Amendment.

The governor isn't going to come out of this case looking any better, even if he might secure tiny wins on small procedural points. Rather than simply cease deleting critical comments and banning critics, the governor has chosen to fight for his "right" to oppress dissent via an apparently official government page. That's really all you need to know about LePage's respect for the First Amendment. It's kind of sickening a government figure would try to argue banning critical speech is protected under the same First Amendment rights he would deny to those engaging with his page.

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posted at: 12:34am on 08-Sep-2018
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