Court Listens To Trademark Plaintiff’s Confused Cries from Yelp
Evan Brown’s Internet Cases blog points us to an interesting, if potentially problematic, ruling from central Florida in a trademark dispute. In ruling on a motion for a preliminary injunction, the court considered evidence of customer confusion—one element of proving a trademark infringement claim—based on postings by users of the ratings website, Yelp. The court noted that not only could hearsay be considered in the context of a preliminary injunction hearing, although not at trial, but that the posts were not being offered for their truth, but rather to show the state of the mind of the poster: I’m confused.
Here’s hoping this conclusion is not adopted widely outside the context of this preliminary injunction hearing. At a trial, it is asking a lot to expect a jury of non–lawyers to distinguish between “I’m confused” as evidence of the state of mind—imagine a cartoon character with a “?” over his head—and “I’m confused” as evidence that an accused mark is in fact confusing. And, of course, any reader of online comments knows they are not the most reliable sources of information in all instances. A disgruntled competitor could easily seed some comments on Yelp in anticipation of a future dispute, then later rely on those comments in subsequent litigation.
