Strategies for Dealing with Defamation or Trade Libel

Ryan Kaiser, Partner

September 21, 2011

2 Min Read
Strategies for Dealing with Defamation or Trade Libel

“How could anyone not like him?” 

Jerry’s mother on the sitcom Seinfeld couldn’t imagine someone disliking her son, let alone defaming him.  Such is the world in which we live.  The Internet compounds the issue by providing a worldwide soapbox where anonymity emboldens the meek.   But how do we know when a mean jab or a less-than-glowing product review crosses the line and becomes something worse, like defamation or trade libel?

Governed by state laws (each with its own nuance), defamation is defined generally as publication of a defamatory statement which the publisher knew or should have known was false.  A statement is “defamatory” if it tends to injure a person’s or business’ reputation, or exposes them to public contempt.  We could fill a law library with the finer points of defamation, but such is beyond the scope of this post.  The general idea is that defamation is a false statement that causes reputational harm.  

So what do you do if you’ve been defamed?   Newton’s third law states that for every action, there is an equal and opposite reaction.  A victim may feel compelled to respond with an equally defamatory statement.  Don’t do it! The defamed can easily become the defamer, facing liability themselves.

 On the Internet, it’s tempting to confront the publisher.  This too should be avoided in most cases.  Engaging the publisher often results in more attention on the original statement than it otherwise would have received (known as the “Streisand effect”). 

The better strategy is to remain calm and objective.  First, evaluate the statement carefully.  Is it true?  Truth is generally a defense to defamation.   If the statement is untrue, take an honest assessment of whether it is actually causing harm.  Some types of statement are so innately harmful that they are defamatory per se.  These are:

  • Attacks that are injurious to business or profession;

  • Allegations that a person is unchaste;

  • Allegations of a loathsome disease; and

  • Allegations of criminal activity.

If a statement is defamatory per se, or otherwise causing tangible harm, contact an attorney.  There are often non-confrontational ways to deal with online defamation.  For example, “reputation management” services can help “de-optimize” defamatory content…in essence, burying the cyber-dirt.  Litigation can also be used as a last resort.  If the case is strong enough, a Temporary Restraining Order can serve to immediately (though temporarily) remove the defamatory comments.

Defamation is no fun.  If it happens to you or your business, it’s important to remember that you have options.  It’s critical that you keep your cool and objectively assess the nature of the statement, and whether it’s causing actual harm.  Your attorney can help evaluate the situation and prescribe a plan of action.   

About the Author(s)

Ryan Kaiser

Partner, Amin Talati Wasserman

Ryan Kaiser specializes in the protection and enforcement of trademark rights for businesses of all sizes. His diverse trademark practice includes counseling clients on the selection of new marks, clearance searching, U.S. and international registration, licensing, portfolio strategy, anti-counterfeiting measures, enforcement, oppositions, and litigation. Ryan also assists clients with the protection, enforcement, and licensing of copyrights.

For nearly two decades, Ryan has represented clients in a variety of industries, including food and beverage, dietary supplements, cosmetics, pet food and treats, pharmaceuticals, medical devices, consumer products, musical instruments, computer software and hardware, online media, automotive products, publishing, education, and sporting goods. Startups, entrepreneurs, and early-stage food and beverage companies frequently engage Ryan to provide strategic counseling in intellectual property matters. Ryan also provides buy- and sell-side due diligence support related to the merger or acquisition of a company or its intellectual property.

When issues of trademark infringement arise, Ryan is the attorney clients want on their team. While he has significant experience resolving trademark disputes through negotiation, he also regularly litigates before federal district and appellate courts as well as the Trademark Trial and Appeal Board. Clients also turn to him when faced with domain name disputes, including Uniform Dispute Resolution Policy (UDRP) proceedings and lawsuits before courts in the U.S. and abroad.

Ryan is a sought after speaker on trademark and unfair competition issues and has served as Vice Chair of the Chicago Bar Association’s Food Law Committee.

When he is not busy protecting his clients” brands, Ryan enjoys traveling with his wife and children, learning (albeit, slowly) to play the guitar, and dabbling in ultrarunning.

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