In 2007, Jenzabar, a company that makes software systems for colleges and universities, sued Long Bow Group, the maker of a documentary film about the 1989 student protests at Tiananmen Square called The Gate of Heavenly Peace. The complaint included claims for trade libel, defamation, and various trademark violations. 

Long Bow publishes the TSquare website, which features information and commentary about the events and people depicted in the film. Among other things, it includes articles and background information about Chai Ling, the founder of Jenzabar who was a student leader during the Tiananmen protests and who was portrayed critically in the film.

According to court documents, Chai Ling, Jenzabar, and another Jenzabar executive, Robert A. Maginn, Jr., claimed that Long Bow defamed them on the TSquare website by publishing an "excerpt from an August 2003 Boston Globe column stating that 'fiveformer executives have sued Jenzabar, including the former CEO, whoaccused Chai and Maginn of "a number of unethical, inappropriate,and/or illegal actions."'"  Slip op., at 2-3. The former CEO referenced in the Globe article eventually retracted his allegations anddismissed his lawsuit.

The plaintiffs also claimed that Long Bow violated federal and state trademark laws by using their trademarks—JENZABAR, JENZABAR.COM, JENZABAR.NET, LING CHAI AND CHAI LING—as metatags for those pages discussing Chai Ling and Jenzabar.

In response to Long Bow's motion to dismiss the complaint, in August 2008 the court dismissed the defamation and trade libel claims, ruling that Long Bow had no continuing duty to investigate the accuracy of the Boston Globe article posted on its site.  The court denied the motion to dismiss the trademark claims, but expressed doubt as to their viability:

Although Jenzabar seems unlikely to prevail on this claim because of the dissimilarity of Long Bow's business, Jenzabar has adequately pled the likelihood of confusion element, which is all that is required to survive a motion to dismiss. 

Slip op., at 7.

Long Bow filed a motion for summary judgment in October 2009, arguing that use Jenzabar's trademarks in its metatags does not create a likelihood of consumer confusion, and that the First Amendment protects its use of the metatags because they are directed to Long Bow's truthful and noncommercial speech about Jenzabar and Chai Ling.

In November 2009, Jenzabar filed a motion to disqualify Public Citizen Litigation Group as Long Bow's counsel based on two blog posts Public Citizen lawyers published about the case—Jenzabar Joins Trademark Abusers Hall of Shame (CL&P Blog) and Faulty trademark case pits Tiananmen Square protest leader against filmmaker (Citizen Vox).  Jenzabar argued that the posts will "create controversy" and "cause prejudice to Jenzabar," and that anylawyer who engages in such blogging is in violation of Massachusettscourt rules. Paul Levy of Public Citizen publicly responded to these claims on the CL&P Blog, characterizing the motion as a further attempt to suppress speech.

Update:

12/7/10 -  Superior Court Judge Cratsley granted defendant's motion for summary judgment on the ground that there was no evidence supporting the claim that any reasonable Internet user might be confused about whether Jenzabar was the sponsor of Long Bow's web site.

9/6/11 - Jenzabar appealed the grant of defendant's motion for summary judgment.

10/17/11 - Jenzabar filed its opening brief with the Massachusetts Appeals Court.

12/22/11 - The Boston Patent Law Association filed an amicus brief urging the Appeals Court to recognize "initial interest confusion" as a valid doctrine under trademark law.

1/18/12 - Appellee Long Bow filed its brief with the court. The Digital Media Law Project filed an amicus brief urging the court to reject application of trademark law to critical, communicative uses of trademarks. 

3/2/12 - Appellant Jenzabar filed a reply brief with the court, addressing the claims from Appellee Long Bow and the Digital Media Law Project.

10/18/12 - The Massachusetts Appeals Court affirmed summary judgment in favor of Long Bow, holding that: (1) Jenzabar's infringement claim failed because it did not present sufficient evidence to support a finding of likelihood of confusion; (2) allegations that Jenzabar's trademark was used for the purposes of critical commentary could not support a dilution claim; and (3) the fact that Long Bow's website did not possess a tendency to deceive consumers was fatal to its Massachusetts statutory claim for unfair and deceptive trade practices.

11/2/12 - Jenzabar filed an Application for Further Appellate Review with the Massachusetts Supreme Judicial Court. 

11/19/12 - Long Bow filed an opposition to Jenzabar's application.

12/19/12 - The Supreme Judicial Court denied the application for further appellate review.

Dr. Paul Straub filed a defamation lawsuit against Media Visions Inc., the company behind HairTransplantNetwork.com, on the grounds that he was removed from the website's recommended doctors list and that critical comments were posted on the website's forum.

HairTransplantNetwork.com operates two affiliate websites, RegrowHair.com, which serves as its Q&A Blog, and Hair-Restoration-Info.com, which serves as a forum for patients to discuss their experiences. HairTransplantNetwork.com suspended its recommendation of Dr. Straub in the summer of 2007. Dr. Straub requested that his recommendation be reinstated and that any critical forum posts be deleted.

When HairTransplantNetwork refused to take down the forum posts and to reinstate his recommendation, Dr. Straub filed a lawsuit. Dr. Straub voluntarily dismissed the case eight months later, in April 2009.

In January 2009, Butler University filed a "John Doe" defamation lawsuit against the pseudonymous author of the TrueBU blog, who signed his posts "Soodo Nym." The author later was identified as Butler University student Jess Zimmerman.

The complaint alleged that Soodo Nym defamed the University and two of its administrators in at least five blog posts from October to December 2008. The posts criticized school officals in connection with the decision to dismiss the chair of the school's music department (who happens to be Zimmerman's stepmother). Specifically, the complaint cited the following statements, among others, as allegedly defamatory:

• "Peter Alexander, Dean of the JCFA, is power-hungry and afraid of his own shadow.  He drives away talented administrators. He frustrates students within the departments.  He hurts the ability of the school to recruit talented students and faculty members.  He announces to the campus that the Butler Way, the ideals for which the school and everyone at it stands, means nothing." ¶ 17.

• "Dean Alexander has misused his authority, is paranoid, and is unequivocally a poor leader of an otherwise promising college with Butler University.  Need more be said?  He says one thing and does another. . . .  [Dean Alexander] cannot deal with disagreements or conflict and instead uses the brute force of his authority as Dean to dictate what happens within the JCFA." ¶ 23.

• "Dr. Comstock 'doesn't seem to care much for student opinion,' is 'unwilling to work with students unless she can see how the relationship will directly benefit her,' and seems to 'have some illusions of grandeur and a love for the power of her position.'" ¶ 11.
  

According to an October 13 statement from Butler President Bobby Fong, the school requested permission from the court in February and April to issue subpoenas seeking the blogger's identity.  In both cases, the court granted the request and issued the subpoenas.  (It does not appear from the record whether Zimmerman had notice of the subpoena requests or intervened to object.) According to Fong's statement, information obtained through the subpoena process led to Zimmerman. (Zimmerman says that the University told him it had proof he was Soodo Nym back in January.) In October, Zimmerman came forward publicly as the author of the blog, which had ceased operations on January 1 in response to the university's threat of a lawsuit.

On October 27, President Fong issued another statement, indicating that Butler had dropped the lawsuit and would "deal with Jess Zimmerman through the internal disciplinary process."

James Dolan, Cablevision Systems Corporation, and Madison Square Garden sued the blog Cityfile: New York, its publisher, and one of its bloggers over a July 2009 post entitled "Jim Dolan to Kill Christmas in July?"  The complaint (¶ 1), filed in New York state court, describes the Cityfile post as follows:

The article . . . defames and disparages the Radio City Christmas Spectacular, the iconic holiday season production owned and operated by MSG, by — among other things — falsely alleging that Plaintiffs plan to "kill Christmas" for millions of fans by discontinuing the Christmas Spectacular, "scrap[ping]" the world-famous Rockettes, and installing an entirely new show at Radio City Music Hall during the holiday season.  Although the article purports to cite "insiders" as the source for these inflammatory allegations, the article is, in truth, nothing more than a sensational headline based on unfounded speculation, including double-hearsay from a "former cast member" and other anonymous "sources" who, as Defendant knew or should have known, have no knowledge of Plaintiffs' plans for the production.

Cityfile retracted the post and publicly apologized, stating: "We now realize that we could have done more to ensure that all relevant facts were included in the article. We have retracted the article and remove it from our website, and regret any negative and/or mistaken impressions that resulted from its publication."

The plaintiffs, real estate developers the Lauth Group, Inc., Lauth Indiana Resort & Casino, LLC, Robert L. Lauth, Jr. and Greg Gurnik, filed a lawsuit in 2007 over statements made in a June 2007 press release about other litigation between the Lauth developers and Merit Management Group, LP.  The press release was published in the e-newsletter INside Edge, which focuses on business news. In the lawsuit, the plaintiffs seek damages for defamation, conspiracy to defame, intentional infliction of emotional distress, and false light invasion of privacy.

Gary Grasso represented Merit Management in prior litigation over the existence of a joint venture agreement with the Lauth developers. After the trial judge denied Lauth's motion for summary judgment in the contract action, Grasso and Merit allegedly participated in the drafting, editing or dissemination of the press release, according to the complaint. (Compl. ¶ 13). The press release stated that "the Lauth people" cannot be trusted in their business dealings and their "deception has now been exposed and confirmed." (Compl. ¶ 13). The plaintiffs contend that the statements imputed to them professional misconduct and harmed their business reputation. (Compl. ¶¶ 23, 27). The case was initially filed in Indiana state court, but the defendants removed to federal court in 2008 on the basis of diversity jurisdiction.

A group of developers sued Gregg B. Smith in Massachusetts state court over his operation of a website and distribution of a newsletter under the name "Save Cape Ann." Smith disputed the ownership of a parcel of land and the developers' right to develop the land. The developers brought suit in September 2006 seeking injunctive relief for defamation, intentional interference with contractual relations, intentional infliction of emotional distress, and trespass. In particular, the plaintiffs sought to prevent Smith from the "distribution of any publications, website, videos, or other means of communication, regarding these unfounded statements about Plaintiffs." (Compl. ¶ 78).

According to the complaint, the website contained "false, disparaging, and derogatory allegations about not only individual members of the Hoffman family, but also about the Kerr family. . . and about Reeb Millwork Corporation." (Compl. ¶ 32).  The allegedly defamatory statements included:

• "Plaintiffs are continueing [sic] the crimes after two of the resident homes were illegally acquired. . ." (Compl. ¶ 33)
• "Tide Rock Developer and former Math professor . . . is a child preditor [sic]. For over 15 years he prayed [sic] on his students giving them illegal drugs." (Compl. ¶ 34).

The plaintiffs also accused Smith of making false and defamatory statements in letters sent to the plaintiffs and their employees.

The Massachusetts state court issued a prelminary injunction in October 2006, prohibiting Smith from (1) making certain defamatory remarks concerning the plaintiffs; (2) contacting the plaintiffs; (3) contacting employees, customers, or affiliates of certain plaintiffs; and (4) coming within 25 feet of "the Stone House." The court specifically ordered Smith not to publish statements claiming that the plaintiffs hired "crooked lawyers" to further their development activities or that they "illegally acquired property, have illegally destroyed homes or property of others, have interfered with the property of others in retaliation for opposition to real estate development activities, and/or otherwise engaged in 'real estate crimes.'"

In March 2007, the court issued a further order expanding the scope of the injunction to prohibit Smith from (1) "publishing any statement accusing any of the Plaintiffs of illegal activity unless and until such illegal activity is actually found and adjudicated"; and (2) "soliciting others to violate the injunction."  In June 2008, the court deleted provisions of the injunction relating to contacting employees and making generalized allegations of criminal activity.

In August 2008, after a trial, a jury returned a verdict for several of the plaintiffs on the defamation count and for one plaintiff on the intentional infliction of emotional distress count, but the jury awarded no damages for these two counts.  (The jury awarded Katherine Hoffman Sen and Scott Kerr $900 for trespass on land, but this was unrelated to Smith's publishing activities.) 

After the jury verdict, the plaintiffs moved the court for entry of judgment, including a permanent injunction prohibiting Smith from making specified defamatory statements about them. In January 2009, the court ruled that it would issue an order enjoining Smith from "publishing the statements which, based upon the evidence, . . . have been the statement or statements the jury found to be defamatory of certain of the plaintiffs."

The plaintiffs, Drs. Nevyas and Nevyas-Wallace and Nevyas Eye Associates, brought suit in federal court in 2004 for damages and injunctive relief for violations of the Lanham Act, defamation, and breach of contract for statements about their LASIK eye surgery practice posted by a former patient on a website.

Dr. Nevyas-Wallace performed elective LASIK eye surgery on the defendant Dominic Morgan in 1998. Displeased with the results, Morgan created a website that "intentionally and maliciously defamed Dr. Nevyas and Dr. Nevyas-Wallace" at that time or soon after, according to the complaint. (Compl. ¶ 18).

The federal Lanham Act claim was based on what the plaintiffs claimed were false or misleading statements posted on defendant's website. (Compl. ¶ 88). They also sued Steven Friedman, an attorney who represented Morgan in previous cases, for allegedly writing defamatory letters to the FDA which were later posted on the complained-of website. (Compl. ¶¶ 60-67). The plaintiffs argued that these statements were "material to the purchasing decisions" and "intended to deceive potential and current patients." (Compl. ¶¶ 89-90).

The federal district court dismissed the Lanham Act claim because the plaintiffs lacked standing to bring a false advertising claim and because Morgan's statements did not qualify as "commercial advertising or promotion." After the court dismissed the federal claim, it declined to exercise supplemental jurisdiction over the state law claims of defamation and breach of contract. Nevyas v. Morgan, 309 F. Supp.2d 673, 680 (E.D. Pa. 2004).

Related case in state court: Nevyas v. Morgan (state lawsuit)