Ascentive LLC v. Opinion Corp. (E.D.N.Y.)

Ronald David Coleman

Case Conclusion Date:December 13, 2011

Practice Area:Trademark Infringement

Outcome:Successful defense against motion for preliminary injunction

Description:This case, arising under the Lanham Act and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), exemplifies a new species of litigation spawned by the age of the Internet. The plaintiffs in this case are Ascentive, LLC ("Ascentive"), an Internet software company, and Classic Brands, LLC ("Classic") a mattress manufacturer. Ascentive and Classic ("plaintiffs") bring suit against Opinion Corp. and three of its officers: (1) Michael Podolsky ("Podolsky"), Chief Executive Officer ("CEO"); (2) Alex Syrov, President; and (3) Joanna Clark Simpson, Marketing Director (collectively "defendants" or "PissedConsumer"), operators and owners of a consumer review website called www.PissedConsumer.com. Plaintiffs move for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure to disable PissedConsumer webpages containing negative reviews of their products at the following web addresses: Ascentive.PissedConsumer.com, FinallyFast. PissedConsumer.com; Dormia-mattresss.PissedConsumer.com; and Dormia.PissedConsumer..com. Plaintiffs contend that PissedConsumer's use of their registered trademarks in the web addresses of these pages, in the pages' metatags—the computer code associated with the pages— in the text pages themselves, and in connection with advertising for their competitors' products on these pages constitutes trademark infringement, unfair competition, and false designation of origin under 15 U.S.C. §§ 1114(1), 1125(a). They also contend that PissedConsumer's "Reputation Management Services," which, for a fee, allows companies receiving negative consumer reviews to respond to the reviews and, under certain circumstances, alter the format in which the reviews appear, effectively amounts to extortion, bribery and other fraudulent behavior prohibited by RICO. For the following reasons, plaintiffs' motions for a preliminary injunction are hereby DENIED.