Blog Posts Used As Evidence in Deceptive Trade Practices Case

In a recent decision by the U.S. District Court for the District of Delaware, the Court used an innovative technique to analyze the plaintiff’s claims of deceptive trade practices. The Court looked to consumer comments in response to the defendant’s blog posts to determine whether potentially misleading posts caused consumer confusion. The Court’s decision is a reminder of the growing trend to rely on social media as evidence during litigation.

In the case of QVC, Inc. v. Your Vitamins, Inc., QVC sued a competitor based on blog posts disparaging QVC’s competing products. The parties in this case are competitors in the dietary supplement market. When QVC released two products that directly competed with Your Vitamins, Inc. (“YVI”), Andrew Lessman, YVI’s founder, took to his blog. In three different blog posts, Lessman compared his products to QVC’s products, reaching unflattering conclusions about QVC’s dietary supplements. Among Lessman’s allegations was the charge that Hyaluronic Acid (“HA”), one of the active ingredient in a QVC supplement, was linked to cancer.

In response to several of Lessman’s blogs, QVC sued alleging multiple claims, including violations of the Delaware Uniform Deceptive Trade Practices Act (“DTPA”). QVC also moved for a Temporary Restraining Order (“TRO”), requiring Lessman to remove the blog posts.

In order to succeed on a TRO, a party must demonstrate a likelihood of success on the merits of a claim, among other requirements. In order to succeed on the merits of its claims under the DTPA, QVC was required to demonstrate that Lessman disparaged the QVC’s goods by a false or misleading representation of fact, or that the defendant created a likelihood of confusion or misunderstanding.

In reviewing QVC’s motion for a TRO, the Court held that QVC failed to demonstrate likelihood of success on the merits. Specifically, the Court found that, based on consumer comments posted in response to Lessman’s blog posts, there was no consumer confusion.

Generally, a plaintiff demonstrates consumer confusion through consumer surveys or the testimony of an expert witness. However, QVC chose instead to offer consumer comments in response to Lessman’s blog post as evidence of consumer confusion. In reviewing the consumer comments, the Court found that only 3 out of 67 comments posted in response to Lessman’s blog mentioned Lessman’s cancer allegation. Of those three posts, none stated that they would not purchase QVC’s product due to the risk of cancer. Consequently, the Court found that there was no actual consumer confusion resulting from Lessman’s potentially misleading statements.

This decision illustrates yet another example of how information posted on social networking sites is increasing relied upon as evidence during litigation.  This information can be particularly valuable for companies seeking to enforce non-competition agreements, since departing employees often rely on social networking sites to publicize their new business and solicit customers.

QVC, Inc. v. Your Vitamins, Inc., No. 10-094-SLR (D. Del. July 27, 2010)

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