False Online Review by the Client against the Lawyer is Libel

IP Logium Blog

District Court of Appeal of The State Of Florida Fourth District, on January 6,  while deciding the appeal No. 4d14-3231, titled  Copia Blake And Peter Birzon, Appellants, V. Ann-Marie Giustibelli, P.A.,  And Ann-Marie Giustibelli, Individually,  Appellees , affirmed and upheld, with a remarkable opinion, the award of punitive damages of $350,000 awarded by the trial court, the Circuit Court for the Seventeenth Judicial Circuit, to the Appellee Ann-Marie Giustibelli

Facts:

Attorney Giustibelli represented her client Copia Blake against her husband Peter Birzon in a dissolution of marriage proceeding . This Attorney Client relationship between Giustibelli and her client Blake was broken  after some time and after this breakdown  the Client Blake and oddly, Birzon (her husband) as well, took to the internet to post defamatory reviews of Giustibelli.

On this act of her client Blake  the Attorney Giustibelli brought a suit, pleading a count for libel. She also brought counts for breach of contract and for attorney’s fees, alleging that Blake still owed her money related to the divorce representation.

As mentioned in this judgment Blake’s and Birzon’s posted internet reviews contained the following statements:

This lawyer represented me in my divorce. She was combative and explosive and took my divorce to a level of anger which caused major suffering of my minor children. She insisted I was an emotionally abused wife who couldn’t make rational decisions which caused my case to drag on in the system for a year and a half so her FEES would continue to multiply!! She misrepresented her fees with regards to the contract I initially signed. The contract she submitted to the courts for her fees were 4 times her original quote and pages of the original had been exchanged to support her claims, only the signature page was the same. Shame on me that I did not have an original copy, but like an idiot . . . I trusted my lawyer. Don’t mistake sincerity for honesty because I assure you, that in this attorney’s case, they are NOT the same thing. She absolutely perpetuates the horrible image of attorneys who are only out for the money and themselves. Although I know this isn’t the case and there are some very good honest lawyers out there, Mrs. Giustibelli is simply not one of the “good ones[.]” Horrible horrible experience. Use anyone else, it would have to be a better result.

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No integrity. Will say one thing and do another. Her fees outweigh the truth. Altered her charges to 4 times the original quote with no explanation. Do not use her. Don’t mistake sincerity for honesty. In her case, they’re not at all the same. Will literally lie to your face if it means more money for her. Get someone else. . . . Anyone else would do a superior effort for you.

**********

I accepted an initial VERY fair offer from my ex. Mrs. Giustibelli convinced me to “crush” him and that I could have permanent etc. Spent over a year (and 4 times her original estimate) to arrive at the same place we started at. Caused unnecessary chaos and fear with my kids, convinced me that my ex cheated (which he didn’t), that he was hiding money (which he wasn’t), and was mad at ME when I realized her fee circus had gone on long enough and finally said “stop[.]” Altered her fee structures, actually replaced original documents with others to support her charges and generally gave the kind of poor service you only hear about. I’m not a disgruntled ex-wife. I’m just the foolish person who believes that a person’s word should be backed by integrity. Not even remotely true in this case. I’ve had 2 prior attorneys and never ever have I seen ego and monies be so blatantly out of control.

Both Blake and Birzon admitted to posting the reviews on various internet sites. The evidence showed that Blake had agreed to pay her attorney the amount reflected on the written retainer agreement—$300 an hour. Blake and Birzon both admitted at trial that Giustibelli had not charged Blake four times more than what was quoted in the agreement.

Circuit Court for the Seventeenth Judicial Circuit, Broward County heard and decided this Case No. 12-22244 (12).  After a non-jury trial, the trial court awarded the appellee, attorney Ann-Marie Giustibelli, damages in this libel and breach of contract case. The court entered judgment in favor of Giustibelli and awarded punitive damages of $350,000.

At this the Copia Blake and Peter Birzon filed an appeal before the District Court Of Appeal Of The State Of Florida Fourth District in which Copia Blake, Kansas City, MO, and Peter Birzon, Weston, represented  pro se and Ann-Marie Giustibelli, Plantation, for Appellees.

After briefs were filed  Birzon filed a notice that he and the Appellee had settled the matter and that he was withdrawing his appeal. Blake did not join in the notice. The court observed about this as:

“ We note that even if she had, we would not have dismissed the appeal.”

The appellate court was very well aware of and understand the importance of this issue in the legal profession. The court observed:

“ One issue Blake and Birzon raised involves the application of free speech protections to reviews of professional services posted on the internet. We affirm in all respects, but this issue merits discussion as it presents a scenario that will likely recur, and the public will benefit from an opinion on the matter.”

Few quotes from this judgment:

“Both Blake and Birzon admitted to posting the reviews on various internet sites. The evidence showed that Blake had agreed to pay her attorney the amount reflected on the written retainer agreement—$300 an hour. Blake and Birzon both admitted at trial that Giustibelli had not charged Blake four times more than what was quoted in the agreement. The court entered judgment in favor of Giustibelli and awarded punitive damages of $350,000.”

“On appeal, Blake and Birzon argue that their internet reviews constituted statements of opinion and thus were protected by the First Amendment and not actionable as defamation. We disagree. “[A]n action for libel will lie for a ‘false and unprivileged publication by letter, or otherwise, which exposes a person to distrust, hatred, contempt, ridicule or obloquy or which causes such person to be avoided, or which has a tendency to injure such person in [their] office, occupation, business or employment.”

“Here, all the reviews contained allegations that Giustibelli lied to Blake regarding the attorney’s fee. Two of the reviews contained the allegation that Giustibelli falsified a contract. These are factual allegations, and the evidence showed they were false”

Note:

Statutory laws of Florida is currently codified in 48 titles. Chapter 836 of Title XLVI deals with Defamation; Libel; Threatening Letters And Similar Offenses. This chapter defines Libel as:

“836.02 Must give name of the party written about.—

(1) No person shall print, write, publish, circulate or distribute within this state any newspaper, magazine, periodical, pamphlet, or other publication of any character, either written or printed, wherein the alleged immoral acts of any person are stated or pretended to be stated, or wherein it is intimated that any person has been guilty of any immorality, unless such written or printed publication shall in such article publish in full the true name of the person intended to be charged with the commission of such acts of immorality.”

Link:

The full judgement Copia Blake and Peter Birzon v.AnnMarie Giustibelli, P.A., and AnnMarie Giustibelli,individually may be found at the below link:

http://www.4dca.org/opinions/Jan.%202016/01-06-16/4D14-3231.op.pdf

The writer is the Managing Partner Intellectual property Logium.

www.iplogium.com

Bar on the Registration of a Disparaging Trademark under Lanham Act and the First Amendment

IP Logium Blog

Bar on the Registration of a Disparaging Trademark under Lanham Act and the First Amendment

Disparaging Mark

A disparaging mark is a mark which “dishonors by comparison with what is inferior, slights, deprecates, degrades, or affects or injures by unjust comparison.”

Geller, 751 F.3d at 1358. To determine if a mark is disparaging under § 2(a), a trademark examiner of the PTO considers:

(1) What is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services; and

(2) If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group.

 Disparaging Marks and United States Trademark Law

The Lanham Act (United States Trademark Law) was enacted in 1946 to provide a national system for registering and protecting trademarks used in interstate and foreign commerce. The Lanham Act makes registration very significant by conferring important legal rights and benefits on trademark owners who register their marks. 

Section 2(a) of the Lanham Act envisages few restrictions on the registration of certain kinds of trademarks. It bars the registration of scandalous, immoral, or disparaging marks. 15 U.S.C. § 1052(a).

The bar on registration of a trademark under Lanham Act extends to the Trademark that “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.”

Section 2(a) contains proscriptions against trademarks based on expressive nature of the content, such as the ban on marks that may disparage persons or are scandalous or immoral.  A disparaging mark is a mark which “dishonors by comparison with what is inferior, slights, deprecates, degrades, or affects or injures by unjust comparison.”

The relevant provision of the Lanham Act 1946 is as below:

§ 2 (15 U.S.C. § 1052) Trademarks registerable on the principal register; concurrent registration

“No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—

(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or a geographical indication which, when used on or in connection with wines or spirits, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the applicant on or after one year after the date on which the WTO Agreement (as defined in section 3501(9) of title 19) enters into force with respect to the United States.”

First Amendment United States Constitution

The supreme Law of the United States of America is the United States Constitution  which came into force in 1789. The US constitution has been amended twenty-seven times. The First Amendment was adopted on December 15, 1791. The First Amendment guarantees the freedom of religion, expression, assembly, and the right to petition. The freedom of expression is guaranteed by the First Amendment prohibits Congress from restricting the press or the rights of individuals to speak freely. 

Below is the text of the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Is § 2(a) Lanham Act 1946 Unconstitutional and Conflicting to the First Amendment?

Our opinion on the issue is as below:

“Disparagement provision of § 2(a) Lanham Act 1946 bar on registration of disparaging marks in 15 U.S.C. § 1052(a) is certainly violative of the First Amendment, therefore, the disparagement provision of § 2(a) is unconstitutional because it violates the First Amendment. The Government can legislate on "Intent of Speech/Expression" but "Speech/Expression" must be unfettered in view of First Amendment. First Amendment does not allow the Government to declare a kind of words or set of expressions as disparaging. The usage of certain words may be disparaging but Government is not allowed to stop its usage/speech and expression under the law according to First Amendment.”

Recent decision of the United States Court of Appeals for the Federal Circuit dated December 22, 2015 In Re Simon Shiao Tam Appeal Number:  2014-1203 declaring §2(a) Lanham Act Unconstitutional and against the First Amendment.

Prior to this decision the most important decision of the United States Court of Appeals for the Federal Circuit on this issue was In re McGinley, 660 F.2d 481, 484 (C.C.P.A. 1981) wherein the court held that the refusal to register a mark under § 2(a) does not bar the applicant from using the mark, and therefore does not implicate the First Amendment.

The entirety of the McGinley analysis was: “With respect to appellant’s First Amendment rights, it is clear that the PTO’s refusal to register appellant’s mark does not affect his right to use it. No conduct is proscribed, and no tangible form of expression is suppressed. Consequently, appellant’s First Amendment rights would not be abridged by the refusal to register his mark.”

In subsequent cases, panels of United States Court of Appeals for the Federal Circuit relied on the holding in McGinley See In re Fox, 702 F.3d 633, 635 (Fed. Cir. 2012); In re Boulevard Entm’t, Inc., 334 F.3d 1336, 1343 (Fed. Cir. 2003); In re Mavety Media Grp., 33 F.3d 1367, 1374 (Fed.Cir. 1994). For more than 30 years this interpretation of law prevailed in the United States.

However this judgment In Re McGinley, 660 F.2d 481, 484 (C.C.P.A. 1981) and other precedents have been overruled by the United States Court of Appeals for the Federal Circuit vide order dated December 22, 2015 In Re Simon Shiao Tam Appeal No.  2014-1203. The most important abstracts and portions of this most remarkable judgment of the Court of Appeal for the Federal Circuit dated December 22, 2015 In Re Simon Shiao Tam, which has been decided  after sua sponte ordered rehearing en banc, are as below:

Opinion for the court was filed by Circuit Judge Moore, in which Chief Judge Prost and Circuit Judges Newman, O’Malley, Wallach, Taranto, Chen, Hughes, and Stoll joined.

Opinion concurring in part and dissenting in part filed by Circuit Judge Dyk, in which Circuit Judges Louries and Reyna join with respect to parts I, II, III, and IV.

On November 14, 2011 Mr. Tam filed application to register the mark THE SLANTS for “Entertainment in the nature of live performances by a musical band” The examiner refused to register mark, finding it likely disparaging to “persons of Asian descent” under § 2(a).

The Board affirmed the examiner’s refusal to register the mark. At this the Applicant Mr. Tam appealed, arguing that the Board erred in finding the mark disparaging and that § 2(a) is unconstitutional. On appeal The United States Court of Appeals for the Federal Circuit affirmed the Board determination that the mark is disparaging however the Panel sua sponte ordered rehearing en banc on the issue of that § 2(a) is unconstitutional and asked the parties to file briefs on the issue: Does the bar on registration of disparaging marks in 15 U.S.C. § 1052(a) violate the First Amendment?

After completion of its hearing the decision of the court held § 2(a)  Lanham Act as unconstitutional. The most relevant and important parts of the decision are quoted as below:

“Federal trademark registration brings with it valuable substantive and procedural rights unavailable in the absence of registration. These benefits are denied to anyone whose trademark expresses a message that the government finds disparages any group, Mr. Tam included. The loss of these rights, standing alone, is enough for us to conclude that § 2(a) has a chilling effect on speech. Denial of federal trademark registration on the basis of the government’s disapproval of the message conveyed by certain trademarks violates the guarantees of the First Amendment.”

“The government admits that any message-based regulation of copyrights would be subject to the First Amendment. We agree, and extend the government’s reasoning to § 2(a)’s message-based regulation of trademarks. These registration programs are prototypical examples of regulatory regimes. The government may not place unconstitutional conditions on trademark registration. We reject the government’s argument that it is free to restrict constitutional rights within the confines of its trademark registration program.”

“We conclude that the government has not presented us with a substantial government interest justifying the § 2(a) bar on disparaging marks. All of the government’s proffered interests boil down to permitting the government to burden speech it finds offensive. This is not a legitimate interest. With no substantial government interests, the disparagement provision of § 2(a) cannot satisfy the Central Hudson test. We hold the disparagement provision of § 2(a) unconstitutional under the First Amendment”

“CONCLUSION: Although we find the disparagement provision of § 2(a) unconstitutional, nothing we say should be viewed as an endorsement of the mark at issue. We recognize that invalidating this provision may lead to the wider registration of marks that offend vulnerable communities. Even Mr. Tam, who seeks to reappropriate the term “slants,” may offend members of his community with his use of the mark. See Br. of Amici Curiae Nat’l Asian Pacific Am. Bar Ass’n 3, 5. But much the same can be (and has been) said of many decisions upholding First Amendment protection of speech that is hurtful or worse. Whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others. Even when speech “inflict[s] great pain,” our Constitution protects it “to ensure that we do not stifle public debate.” Snyder, 562 U.S. at 461. The First Amendment protects Mr. Tam’s speech, and the speech of other trademark applicants.”

“We hold that the disparagement provision of § 2(a) is unconstitutional because it violates the First Amendment. We vacate the Board’s holding that Mr. Tam’s mark is unregistrable, and remand this case to the Board for further proceedings.”

This judgment has changed the scenario of Disparaging Marks in United States and the next important question is how the Future of such marks shall be decided by the Supreme Court.

The writer is Managing Partner Intellectual Property Logium

www.iplogium.com