Monday, February 13, 2017

calling a rival "imitation" is neither defamatory nor confusing

Baltimore Sports & Social Club, Inc. v. Sport & Social, LLC, 2017 WL 526499, No. 16–cv–02953 (D. Md. Jan. 6, 2017)
BSSC logo

Sport & Social logos

BSSC initiated suit, claiming that Sport & Social’s use of the marks BALTIMORE SOCIAL and BALTIMORE SOCIAL SPORTS, the yellow and black colors and the Maryland State flag were likely to cause confusion.  Defendant Sport & Social counterclaimed against BSSC for a declaratory judgment of noninfringement, as well as for tortious interference, false advertising, and related claims. The parties compete in recruiting individuals to play sports on company-organized teams.  BSSC allegedly began telling current and prospective customers that it was an “imitation” social league, and at the February 2016 Sport and Social Industry Association conference attended by both parties, a BSSC principal wore a t-shirt at with the phrases: “BSSC, It’s the Real Thing,” and “DON’T BE FOOLED BY IMITATIONSocials,” with the last word in the “same font and style” as Sport & Social’s logo which contains the phrase “BALTIMORESocial.” They also allegedly displayed the same slogan on a banner at an event at Camden Yards for opening day of the Baltimore Orioles’ 2016 season, and put a picture of this banner on BSSC’s Facebook page.
"imitation" banner

"imitation" T-shirt (PS: does Coke have an issue with "it's the real thing"?)

Also, “[o]n separate occasions throughout the summer of 2016,” BSSC allegedly “occupied” fields at Patterson Park where Sport & Social had planned sporting events for its customers. BSSC employees allegedly were “hostile and rude” and “refused to leave the fields, causing disruption and delay to Sport & Social’s planned events.”

Defamation: BSSC allegedly defamed Sport & Social by calling it an “imitation” social league.  This couldn’t be defamatory because “imitation” is a “rhetorical statement” that lacks precision and cannot be “proven as a true or false statement of fact.”  Verifiability, or the lack thereof, is the key.  Even if “imitation” is shorthand for “counterfeit,” in this context, it was precisely the type of “loose, figurative, or hyperbolic” language protected by the First Amendment. Even if the evidence proved that the companies were substantially similar, that wouldn’t prove that Sport & Social was an “imitation” of BSSC.  Because defamation was the “independently wrongful or unlawful” act underlying Sport & Social’s tortious interference counterclaim, that went too. The non-factual nature of “imitation” in this context also ended the Lanham Act counterclaim.

Only a consumer has standing under the Maryland Consumer Protection Act to challenge unfair and deceptive trade practices.

Finally, Sport & Social alleged that BSSC’s use of the “IMITATIONSocials” logo was likely to cause confusion with “BALTIMORESocial.” Though likely confusion usually can’t be resolved on a motion to dismiss, “a conclusory and ‘formulaic recitation’ of the elements of a[n unfair competition] cause of action is insufficient.”  Here, that was all Sport & Social had. (By contrast, BSSC’s initial complaint alleged various instances of “[a]ctual [c]onfusion” including players who thought they were playing in BSSC leagues when they were playing in Sport & Social leagues and email inquiries from Sport & Social players regarding scheduling for soccer, a sport not offered by BSSC.) Not only was Sport & Social’s pleading minimal,  “the whole point of the statement is to draw a distinction between the two entities,” rather than to propagate confusion. 

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