BROOKLYN, N.Y. (CN) – Though he found its business model “troubling,” a federal judge refused to shut down PissedConsumer.com, a website that airs customer grievances and allegedly tries to sell better reputations to the targeted businesses.
The companies in PissedConsumer’s crosshairs probably will not be able to prove their extortion claims, but Google and other search engines may demolish the website’s presence by imposing the “death penalty,” Senior U.S. District Judge Leo Glasser warned.
Several months ago, Glasser consolidated two 2010 complaints against the website’s owner, Opinion Corp., alleging violations of federal anti-racketeering law.
Ascentive, a computer software company, and Classic Brands, a mattress retailer, both discovered that their customers had posted enraged reviews on PissedConsumer.com, and that the website created individual pages that used the company’s trademark in the subdomain and metadata to boost web searches. When users complained about Ascentive, for example, PissedConsumer posted those reviews on ascentive.pissedconsumer.com.
PissedConsumer.com offers the companies it spotlights the chance to clean up their images – that is, if the companies cough up hundreds of thousands of dollars, according to the complaint.
When Ascentive’s CEO asked how to engage with PissedConsumer reviewers, the website had it sign a nondisclosure agreement to learn about the process, according to deposition testimony.
Those terms allegedly said: “In exchange for $2,500 per month over three years, plus an upfront fee of $30,000-a total of $120,000-Ascentive would receive the following services:
“(1) Notification of every review made on the Ascentive.PissedConsumer webpage and a ‘grace period’ giving Ascentive the ability to address negative complaints before they are publicly posted on the site;
“(2) Removal of all complaints made by commenters who refuse to allow Ascentive to contact them to address their complaints;
“(3) PissedConsumer’s posting of complaints addressed by Ascentive in a way that highlights resolution of the problem, rather than the problem itself. If this feature is in place, visitors to the webpage will only be able to see the original complaint by clicking through to it; and
“(4) Change of the title of the main landing page where consumer reviews are posted from Ascentive@PissedConsumer.com to ‘Ascentive Reviews’ and the ability to change text on the page describing the company and its products and services.”
As the companies head to a trial for declaratory judgment and punitive damages, Ascentive and Classic Brands demanded a preliminary injunction.
Senior U.S. District Judge Leo Glasser refused Tuesday, however, finding it unlikely that the plaintiffs will succeed with their trademark infringement, extortion or other claims.
Courts in the past did not find trademark liability when a union ranked on Cintas through a website called CintasExposed.com, or when an unhappy Texas resident created TaubmanSucks.com to complain about the company building a new mall in his neighborhood, according to the 45-page decision.
“Indeed, the domain names here, like cintasexposed.com or taubmansucks.com, bespeak negativity concerning plaintiffs’ products,” Glasser wrote. “So too does PissedConsumer’s logo-a frowning red cartoon face with a furrowed brow and a speech bubble containing characters in place of an expletive-and PissedConsumer’s tagline: ‘TELL THE WORLD. BE HEARD.'”
“It strains credulity that an Internet user would believe that plaintiffs would sponsor or otherwise approve of a site that contains such criticisms,” he added. “Instead, after a brief inspection of the content of PissedConsumer’s website, the user would realize that they were visiting a third-party gripe site for ‘pissed’ consumers.”
A footnote adds: “It also strains credulity that a consumer would believe PissedConsumer’s pages to be associated with the customer relations department of plaintiffs, one of Ascentive’s contentions.”
Although RICO prohibits accepting “any benefit to influence … selection, appraisal or criticism,” these claims also fail because “PissedConsumer does not hold itself out ‘making … criticism of commodities or services’; instead, it provides a forum for others to make such criticisms,” the order states.
Google’s “death penalty” may provide relief Ascentive and Classic Brands where the civil courts cannot, Glasser added.
“If the search engines conclude that PissedConsumer’s SEO practices are indeed in violation of their terms of service or guidelines, they can take certain steps to punish PissedConsumer including lowering the site’s place in their search result lists or removing the site from their lists completely – the so called ‘death penalty,'” the order states, using the initials for search engine optimization.
Ascentive accused PissedConsumer of using the “black hat” technique of Tweeting an old complaint as news to boost its web presence.
PissedConsumer’s tactics may be “troubling” and “unethical,” but outside the lon arm of the law, Glasser concluded.
“While the court finds some aspects of PissedConsumer’s business practices troubling and perhaps unethical, it has been unable to find a legal remedy for conduct that may offend generally accepted standards of behavior,” he wrote.
The order ends with a poetic line from the late U.S. Supreme Court jurist Oliver Wendell Holmes Jr, who in turn had cited The Siren for his 1922 holding in the Western Maid case: “[Ethical] obligations that exist but cannot be enforced are ghosts that are seen in the law but that are elusive to the grasp.”