We are Consumer Opinion LLC. d/b/a PissedConsumer.com. Before initiating litigation against PissedConsumer.com (“PissedConsumer”) or seeking the identity of a individual who has posted a review or comment on PissedConsumer, we encourage you to familiarize yourself with the content appearing below.
We have compiled the information to aid you, or your agents, for the purpose of explaining some of the more common issues we are contacted about. Our hope is that together this page, and the information appearing in our FAQ section, will answer the majority of inquiries we receive concerning certain legal issues involving our website.
If you take anything away from this, please let it be this: don't sue us for stuff we can't be sued for! You should know better. And, if you do, know that we'll fight you to the death and then go after you for our legal fees.
A post may be removed from our website either by order of a court or by a user complying with our removal procedures discussed above. It would be advisable for you to speak to a legal professional about the situation. There are attorneys experienced in internet defamation who can help you. Pissed Consumer will comply with court orders.
Users should be advised that Pissed Consumer does not endorse the posting of false information. If you have made a false posting on our website previously and wish that your prior post be removed, submit a notarized letter outlining the details below.
Notarized letter must include the following:
A statement that you are the user who posted the information that you now seek to remove;
A statement that the information previously posted by you was incorrect at the time it was posted;
Your full name, mailing address, email address and signature;
The URL (Address) of the subject post as it appears on PissedConsumer.com;
The statement "I declare under penalty of perjury that the information provided in this request is true and accurate to the best of my knowledge";
Legible notary stamp (please make sure we can read commission or id number).
Please send all the documents to our mailing address: Consumer Opinion LLC
1930 Village Center Circle #3-6853
Las Vegas, NV 89134
Notarized letters may also be submitted in a scanned form through Contact Us Page.
PissedConsumer.com will review submitted documents and make determination. Such review may take up to 2 weeks.
Please follow the link to watch online instructions: http://www.youtube.com/watch?v=ZToobE7IHjE.
A valid decision of arbitrator
Why Does PissedConsumer.Com Ignore My Communications?
PissedConsumer.com receives far too much mail and email to respond to everything we receive. In fact, much of what we receive goes unanswered. This often includes communications from lawyers. Despite the fact that many lawyers (or perhaps you as their client) often think we must respond to a lawyer’s letter, our own lawyers tell us we often have no obligation to do so. And, because our lawyers are smart and expensive — in addition to being handsome — they insist we listen to them (our lawyers are Marc Randazza, Ron Coleman and Joel Macmull).
Below are some additional explanations of our approach to many of the communications we receive. We encourage you to review this information and even research these issues yourself. Naturally, we have every expectation we’ll hear from you in the event that you disagree with us and, of course, our lawyers are “primed and ready” for what will undoubtedly be some lively debate.
(The explanations offered below are not intended to be — nor should be construed as — a complete list of reasons why we are likely to ignore your communications. Rather, they are merely a partial list of some of the more common issues we encounter on a regular basis.)
Section 230 of the Communications Decency Act of 1996, 47 U.S.C.§ 230 (The "CDA")
Section 230 of the CDA is landmark legislation involving the regulation of content on the Internet. The statute immunizes providers of interactive computer services against liability arising from content created by third parties; it provides that “[n]o provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c). It further provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Id.§ 230(e)(3).
Section 230 of the CDA was enacted, in part, to “preserve the vibrant and competitive free market that presently exists for the Internet.” 47 U.S.C. § 230(b)(2). Congress enacted Section 230, in part, as a response to a New York state court decision, Stratton Oakmont, Inc. v. Prodigy Servs. Co., (N.Y. Sup. Ct. May 24, 1995), where an interactive computer service was held liable for defamatory comments made by one of its two million users.
To further these goals, Congress declined to extend traditional defamation law, as applied to classical information providers such as newspapers, magazines, television, and radio stations to the Internet. Section 230(c)(1) shields a “provider” or “user” of an “interactive computer service” from liability when either of them publish material provided by a third-party “information content provider.” 47 U.S.C. § 230(c)(1). Section 230(e)(3) provides teeth to § 230(c)(1) by barring all state based claims “inconsistent” with the statute.
In one of the earliest cases involving the CDA, the Court of Appeals for Fourth Circuit interpreted § 230(e)(3) to bar all state claims sounding in tort. Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997). The court observed that Congress did not want to “deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.” Id. at 330-331. The reasoning of Zeran is now widely accepted by courts across the Unites States and, likewise, PissedConsumer.com has been routinely recognized as falling within the Section 230’s protection.
The statute immunizes providers of interactive computer services against liability arising from content created by third parties
SLAPP stands for Strategic Lawsuit Against Public Participation. When filing such a lawsuit, a plaintiff usually intends to silence criticism through imposing of legal defense costs on a critic. Anti-SLAPP laws (anti-SLAPP statutes) target methods used by SLAPP plaintiffs, thus providing remedies from SLAPP lawsuits. Under most anti-SLAPP statutes, the person sued moves to strike the case as it involves speech on a matter of public concern. Then the burden of proof is shifted to the plaintiff whereas the latter has to show evidence supporting the SLAPP claims. Anti-SLAPP statutes vary from state to state as to what speech they cover and to what extent. The language of these statutes varies as well as to the amount of evidence the plaintiffs have to provide when they have the burden of proof.
One of the perfect examples of an anti-SLAPP win is the Nevada failed defamation lawsuits expertly defended by Marc J. Randazza with the review posted on Yelp being the center of attention. The court found that the lawsuit was indeed an attempt to silence public discussion on alleged bad business practices (please see the full text of the court’s decision here). The Supreme Court echoed Marc Randazza’s explanation of the importance of such cases in Gertz vs. Robert Welch. The Nevada anti-SLAPP statute has been successfully used several times to defend against various defamation cases.
One-Sided Claims of Confidentiality
We often receive requests — they sound more like demands, really — in which we’re asked to keep the content of certain communications “confidential.” While we have no idea what the basis is for attempting to impose these limitations on disclosure, where, as here, there exists no agreement between PissedConsumer.com and you to treat any information, let alone your unsolicited communications, as confidential, we nevertheless do not honor such requests. In fact, because we are inclined to believe that such “gag orders” are detrimental to the free sharing of information and ideas that underscores our entire business model, we are more likely to upload these communications to our website.
Why do we allow anonymous posts and use of pseudonyms?
We often hear from aggrieved individuals who complain that negative statements appearing on our website and posted from anonymous or fictitious usernames are improper or impermissible. This, let us assure you, is not the case.
Fundamentally, PissedConsumer's stance on anonymity is grounded in the U.S. Constitution. First Amendment protection for anonymous speech was first articulated more than a half-century ago in the context of political speech, Talley v. California, 362 U.S. 60 (1960), but as the Supreme Court later observed, the Talley decision harkened back to "a respected tradition of anonymityin the advocacy of political causes." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343 (1995). Undoubtedly, the most famous pieces of anonymous American political advocacy are The Federalist Papers, penned by James Madison, Alexander Hamilton, and John Jay, but published under the pseudonym "Publius." Id. at 344 n.6. Their opponents, the Anti-Federalists, also published anonymously, cloaking their real identities with pseudonyms such as "Brutus", "Centinel", and "The Federal Farmer." Id. It is now well-settled that " an author's decision to remain anonymous, like other decisions concerning ommissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment." Id. at 342.
Although the Internet is the latest platform for anonymous speech, online speech stands on the same footing as other speech - there is "no basis for qualifying the level of First Amendment scrutiny that should be applied" to online speech. Reno v. ACLU, 521 U.S. 844, 870 (1997). As with other forms of expression, the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without "fear of economic or official retaliation... [or] concern about social ostracism." McIntyre, 514 U.S. at 341-42.
So, until such time as this bedrock of American jurisprudence changes, PissedConsumer will continue to do its small part to ensure that among its users that choose to, each of them are given the constitutional freedom to speak freely without the fear of reprisal.
Claims of Copyright Infringement
We often receive notices of copyright infringement related to content appearing on PissedConsumer.com. Absent a takedown notice served pursuant to The Digital Millennium Copyright Act (DMCA) — which is beyond the scope of this explanation — we often find such claims lacking in merit.
To begin with, even if the content at issue were amenable to a valid copyright claim under the U.S. law — and many of the “takedown demands” we receive do not — PissedConsumer.com is of opinion that content appearing on its website lies within the limitations and exceptions to the U.S. copyright law known as “fair use.” The fair use exception to copyright law in the United States permits the lawful use of copyrighted material where the purpose of republishing the material includes, but is not limited to, criticism or news-related reporting.
Of course, with the name “PissedConsumer,” negative statements lie at the heart of the content appearing on our website. And, because we take the view that criticism — whatever its subject matter — is always “news worthy,” we believe we fall within the exceptions of the fair use doctrine.
The fair use exception to copyright law in the United States permits the lawful use of copyrighted material where the purpose of republishing the material includes, but is not limited to, criticism or news-related reporting.
Claims of Trademark Infringement
Like claims of copyright infringement, we also regularly receive notices of trademark infringement. More specifically, we receive demand letters wherein we’re informed of an alleged trademark infringement by virtue of a parties’ trademark or trade name appearing on our website. These notices of alleged trademark infringement often include various forms of use of a trademark, including but not limited to, subdomains, metadata or the appearance logos. Despite the fervor that often accompanies these letters, claims of trademark infringement against us, so say our lawyers, are typically meritless, and so we often ignore these communications as well.
In assessing the viability of a bona fide claim for trademark infringement, the likelihood of consumer confusion is central to the inquiry. As one court has put it ““[t]he crucial issue . . . is whether there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question.” Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 588 F.3d 97, 114 (2d Cir. 2009).
But of course PissedConsumer.com is a “gripe site” wherein users voice their complaints, or support as may be the case, and sometimes anonymously. Courts throughout the United States have also routinely held that a gripe site dedicated to complaints about a particular trademark holder does not create likelihood of confusion because no reasonable visitor to a gripe site would assume it to come from the same source or think it to be affiliated with, connected with, or sponsored by the mark holder. Like the word “sucks,” the word “pissed” has entered the vernacular as a word linked to criticism and negativity.
Consequently, no likelihood of confusion can be said to exist because PissedConsumer.com use of trademarks in the context of criticism is not likely to cause a mistake as to origin, sponsorship, or affiliation and, in any event, the First Amendment protects such use. Thankfully, more than just a few courts have agreed with us on these points.
Courts throughout the United States have also routinely held that a gripe site dedicated to complaints about a particular trademark holder does not create likelihood of confusion.
PissedConsumer.com’s Subpoena Policy
While the above explanations offer insight into some of the circumstances surrounding why we may ignore certain demands made of us, we also recognize from time to time that the law imposes certain legal obligations upon us. Most frequently, these obligations arise in the form of a U.S. court’s subpoena power. It’s worth mentioning that PissedConsumer.com treats all validly served subpoenas arising from a court located within the United States seriously. However, it is also important for you to know that PissedConsumer.com insists in strict compliance with its subpoena policy which may be viewed here. Questions concerning PissedConsumer.com’s subpoena policy should be directed to email@example.com
A brief word about the enforcement of foreign judgments and subpoenas
Our lawyers tell us that, as a general rule, a party may enforce a foreign judgment in a domestic U.S. court if either (a) the law of the foreign forum, as applied in the foreign proceeding, provides protection that is coextensive with the relevant domestic U.S. law, or (b) the facts, as proven in the foreign proceeding, are sufficient to establish a claim under the U.S. law.
However, because PissedConsumer.com takes the view — as supported by the U.S. law — that jurisdiction over it may be maintained only in a handful of venues located within the United States — and only the United States — we do not acknowledge the existence of judgments obtained in courts located outside of the United States. Accordingly, PissedConsumer.com does not engage in evaluating the presence of either (a) or (b) above and so we do not take any action pursuant to foreign judgments.
Likewise, subpoenas issued by courts located outside the United States are also given little attention. While the U.S. federal law pursuant to 28 U.S.C. § 1782 provides for the enforcement of subpoenas issued by foreign courts by way of a mechanism known as “letters rogatory,” the issuance and enforcement of such “letters” we understand is administered exclusively by the United States federal courts pursuant to the Federal Rules of Civil Procedure and U.S. due process considerations. Therefore, to extent PissedConsumer.com could ever be compelled to respond to such a request for information issued by a foreign court, such an obligation would necessarily involve the United States federal court system.
In an effort for this page to be truly valuable to you (as well as us), we offer below the links to a series of court decisions and commentaries in which we have been successful. The cases and issues discussed here are intended to — and indeed do — support the legal positions addressed above in the event that you thought we were just making it all up.
If you take anything away from this, please let it be this: don’t sue us for stuff we can’t be sued for! You should know better. And, if you do, know that we’ll fight you to the death and then go after you for our legal fees. Here’s in part why we’re so confident:
In Roca, a weight loss product manufacturer sued us on grounds that comments posted by third parties and appearing on PissedConsumer.com constituted, among other things, “tortuous interference” because we knowingly maintained negative posts on our website in violation of a “gag clause” – which we maintain is unlawful – appearing in Roca’s sales’ contracts with its customers. Keep in mind that this case was in Florida, which is much more friendly towards defamation plaintiffs than most jurisdictions. Even the Judge saw the law as so clear and compelling that she ruled in our favor. After more than a year of highly contentious litigation in which the parties’ filed multiple motions to dismiss, the Court ultimately hung its hat on a singular dispositive legal issue — Section 230 — in the face of Roca’s utterly meritless legal theories and ruled that PissedConsumer.com and its affiliate entities must be afforded complete and total immunity under the applicable federal statute. One by one, the Court dismissed each of Roca’s nine separate causes of action, serving as merely the most recent reminder that even in the face of perceived creative lawyering, a would-be plaintiff cannot defeat the clear and unambiguous law that surrounds the protection afforded under Section 230. Of course, certain legal commentators — some of whom are our friends — saw this inevitable outcome more than a year earlier. You can read all about their on-point predictions here. In Roca, the Plaintiff seemed to believe that if they caused us to incur fees, at some point we would simply consider it to be a good business move to "just take it down." However, we happily spent well in excess of $500,000 in fees defending this case. It is not simply stubbornness on our part. Although we are stubborn, there is also a smart business reason, and a principal legal reason, for us to hold that line. In the event that companies could simply suppress negative reviews by threatening lawsuits, the consumer review business would cease to exist. Further, if companies did not fight back at attempts to litigate in contravention of 47 U.S.C. § 230, then that very strong protection would quickly erode.
In this case, Woodbridge sought pre-suit discovery of the identity of certain posters in connection with comments appearing on PissedConsumer.com. Woodbridge alleged that the posts at issue were defamatory and therefore actionable under New York law. The New York trial court, in the denying Woodbridge’s application for pre-action disclosure from PissedConsumer, held that “even if a cause of action for defamation were otherwise stated, it is necessary to considering the writing as a whole, as well as the over-all context of the publication, to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the libel plaintiff.” With this as backdrop, the court went on to find that when viewed in context, a reasonable reader would perceive the postings appearing on our website as merely pure opinion, and not fact, such that no claim for defamation under New York law could be said to exist. The trial court’s decision was later affirmed in all respects by the New York Supreme Court, Appellate Division, First Department a year and a half later.
Financial services company deVere Group sued PissedConsumer.com, our holding company and our principals, for alleged trademark infringement under U.S. federal law because of the appearance of “deVere Group” together with various suffixes it claimed ownership of on our website. We moved to dismiss the action on grounds that it lacked merit as a matter of law. In granting our motion to dismiss very early in the litigation the court agreed, finding that, as a matter of law, no “likelihood of success” could be said to exist between deVere’s trademark interests — such as they are — and the appearance of its trade name on our website. Most notably, the district court found that under the applicable test utilized by the United States Court of Appeals for the Second Circuit, deVere’s services were not likely to be confused with those offered by PissedConsumer.com because the parties do not compete with one another. Moreover, the court also noted that “gripe sites,” like PissedConsumer.com which incorporate derogatory or critical terms alongside a company’s trade name, in both the domain name and the website contexts, do not present a likelihood of confusion for purposes of the U.S. federal trademark act. This decision, and the soundness of its outcome, is discussed here and here.
In one of our first cases that attempted to (mis)use federal trademark law as a workaround Section 230’s prohibition on inconsistent state law claims, Ascentive, a software developer focused on consumer products designed to optimize personal computer performance and Classic Brands, a “sleep product manufacturer” (read mattresses) and wholesaler, teamed up in the fall of 2010 in an effort to stop PissedConsumer from displaying negative consumer reviews on our website.
To enhance their bogus trademark claims — the linchpins of their complaints — Ascentive and Classic argued that certain technological features utilized on our website supported a finding of trademark infringement. (More recently, Roca Labs, as discussed in more detail above, tried this same approach by arguing that our publishing of posts via Twitter, our use of “handles” and the modification of links constituted “authorship,” such that our use of these technologies invalidated the immunity provided under Section 230. However, neither the Roca or Ascentive court, as both of these decisions explain, found these arguments persuasive.)
In thoroughly denying Ascentive and Classic’s application for a preliminary injunction, the court “sliced and diced” the range of federal and common law trademark-related claims that considered Internet subdomains, metatags, and the placement of Internet advertisements as indicative of PissedConsumer’s purported wrongdoing. Central to the Ascentive court’s likelihood of confusion analysis was, once again, the complete and utter inability on the part of any reasonable visitor to our website to become seriously “confused” between the criticisms directed toward Ascentive and Classic appearing on our website, and the products these companies offered in the marketplace. Accordingly, in what is now “old news” (but was immensely reassuring at the time), the Ascentive court determined that no likelihood of confusion could exist.
So too did the Ascentive court make short work of Ascentive and Classic’s claims of tortuous interference; it determined Section 230 provided a complete and total bar to these state-based tort claims.
With the crushing defeat Ascentive and Classic experienced, which included the court’s total rejection of an ill-conceived federal racketeering allegation almost as quickly as the claim was hastily put together, this decision was widely heralded as one of the most important Internet-related decisions of 2011. Read all about why.
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www.PissedConsumer.com (the “Site”, “We”, “Us”, “Our”) is an online forum created to help keep consumers informed.
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