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Countersues over trademark claim

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A US online publisher is fighting to keep its product review forums alive in the face of a trademark lawsuit that seeks to ban the use of one company's product name.

Realself.com is a site where people who have undergone plastic surgery review various products and procedures. It has been sued (pdf) by Lifestyle Lift, a facelift company which wants to stop the site using its name in reviews.

Realself has counterclaimed (pdf), accusing Lifestyle Lift of publishing fake positive reviews on its site which purport to be from ordinary users, a practice sometimes known as 'astroturfing'.

Realself founder Tom Seery told OUT-LAW Radio that his firm had stood up to the trademark lawsuit because it believed that consumer reviews must be allowed to be impartial and genuine.

"We believe that we have to vigorously defend the rights of our consumer community members to participate in an open and free forum that's unbiased," said Seery. "So we are willing to step up and protect that right so we'll do whatever it takes to continue operating as we do today."

Lifestyle Lift's lawsuit claims that because Realself.com contains its trademark as well as advertising for other plastic surgery products and procedures, consumers could be confused and think that Lifestyle Lift was a part of Realself.

Seery said that he sees no merit in the claims. "We believe that these allegations are completely not true, we are asserting that they are just using trademark law to silence the critics in our community who have come forward to share not so positive experiences with Lifestyle Lift," he said.

One such testimony came from a Lifestyle Lift user calling themselves Scarface 55 and who described the experience with the procedure as "a true disaster".

"I still look the same after two procedures, but now I have horrific scars down both sides of my face, stabbing pain, incessant itching, sutures coming through the skin, lumps & bumps, my ears are in the wrong place causing pain and each time I shower my ears now fill with water," she said, claiming that she was given just three minutes in which to sign the paperwork related to the operation.

The lawsuit could have implications for the scores of product review websites which allow consumers to read what other users of products or services think of them. Holiday reviews have been a particularly popular subject of consumer reviews.

But trademark law expert Judith Tonner of Pinsent Masons, the law firm behind OUT-LAW.COM, said that if such a case arose in the UK it would be unlikely to succeed.

Trademark law is designed to stop a company claiming another company's products as their own, and infringers must have caused a consumer confusion. The two companies, then, must share a business type, she said.

"The people that are complaining of the infringement provide some sort of cosmetic procedure. The people that host the forum provide a forum," she said. "Would people looking at that forum think that that web host or company would also be able to provide you with their own cosmetic procedures?"

"Possibly not, and there's certainly an argument that magazines and online comment sites are in a different area of trade so there isn't the requisite likelihood of confusion," said Tonner.

Copyright © 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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