BidZirk v. Smith

Citation: BidZirk, LLC v. Smith, 2007 WL 626161 (D.S.C. April 10, 2006), aff’d, 2007 WL 664302 (4th Cir. Mar. 6, 2007).

Factual Background
Smith posted an article on his blog regarding his experience using BidZirk, an auction listing company, to sell products on eBay. The article was titled “Special Report: You Gotta Be Beserk to Use an eBay Listing Company! The Whole Story.” Smith’s article depicts BidZirk’s trademark and details his dealings with BidZirk’s president; discusses the “positive and mostly negative aspects” of using an eBay listing company like BidZirk; and provides tips for his readers in deciding whether to use a listing company.

Trial Court Proceedings
BidZirk filed suit and sought a preliminary injunction based on its federal dilution claim. The Magistrate Judge issued a Report recommending denial of plaintiff’s motion because the use of the BidZirk trademark in Smith’s article fell within the “news reporting and news commentary” exception of 15 U.S.C. §1125(c)(4)(C). BidZirk objected to the Report, arguing that Smith’s use of the BidZirk mark was not in news reporting or commentary but rather was “cybergriping”; Smith’s article went beyond news gathering by offering suggestions to BidZirk on how to run its business; and Smith’s “adversarial and vindictive approach” to BidZirk was intended “to injure BidZirk and its principals” as evidenced by an e-mail from Smith threatening to inform the “DA” about BidZirk’s allegedly fraudulent practices and to picket in front of BidZirk’s business.

The court initially noted that the terms “forms of news reporting and news commentary” were not defined in the Lanham Act and that there was no published case deciding whether a blogger was a journalist. It then examined the content of the article, not the format, to determine whether it was “journalism.” The court concluded that Smith’s sue of BidZirk’s mark in his article was in the context of news reporting or news commentary because it was “written for the purpose of conveying information.” Any negative comments in the article did “not dictate that the article’s function was not news reporting or news commentary.” Accordingly, the court adopted the Magistrate Judge’s Report and Recommendation and denied plaintiff’s motion for a preliminary injunction.

Appellate Court Proceedings
On appeal, in a unpublished decision, the Fourth Circuit held that the district court did not abuse its discretion in denying a preliminary injunction and affirmed the lower court’s decision.

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