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Question: What is libel?
Answer: Libel is a defamatory statement expressed in a fixed medium, usually writing but also a picture, sign, or electronic broadcast. See What is the legal definition of defamation?
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Question: What is libel per se?
Answer: Libel per se describes statements which are widely understood to be harmful to a person's reputation. For example, referring to an individual as an alcoholic or criminal, or using any description which would lower the reputation of that individual in the eyes of others.
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Question: What is trade libel?
Answer: Trade libel is defamation against the goods or services of a company or business. For example, saying that you found a severed finger in a particular company's chili (if it isn't true). Along with the ordinary elements of a defamation claim, (see What are the elements of a defamation claim?) the person suing must prove money damages. Defenses include 1) that the statement was true; 2) that the statement was opinion, not fact; and 3) that the plaintiff did not suffer monetary damage.
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Question: What is disparagement?
Answer: As defined in Black's Law Dictionary (7th ed. 1999), disparagement is "A false and injurious statement that discredits or detracts from the reputation of another's property, product, or business. To recover in tort for disparagement, the plaintiff must prove that the statement caused a third party to take some action resulting in specific pecuniary loss to the plaintiff."
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Question: Does it make any difference if I am commenting on a product or company rather than a person?
Answer: Product disparagement law prohibits certain false claims about another's goods or services. While a defamatory statement harms the reputation and character of a person or corporation, a product disparaging statement harms the marketability of the goods being disparaged. Product disparagement is typically harder to prove.
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Question: What is defamation?
Answer: Generally, defamation is a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.
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Question: How does the First Amendment to the Constitution affect defamation?
Answer: The free speech guarantees under the Constitution protect certain speech and commentary. The degree of protection generally depends on whether the person commented about is a private or public figure and whether the statement is regarding a private or public matter. According to the New York Times rule (from the case New York Times v. Sullivan), when the plaintiff is a public figure and the matter is one of public concern, the plaintiff must prove "malice" or "reckless disregard" on the part of the defendant. If both parties are private individuals, there is less protection for the speech because the plaintiff only needs to prove negligence.
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Question: I have an unsettling feeling in the pit of my stomach about the tone of the C&D I received. Does the tone of the c & d mean I am going to lose this dispute?
Answer: "Gorilla Chest Thumping" refers to the tone of most C&Ds: it?s nasty. The first thing to do is take a deep breath. The second thing to do is to acknowledge that the tone of the letter is a function of the letter writer?s perception that aggression is the best defense: do not take it personally. The third thing to do is ignore the tone and focus on the facts. You may eventually choose to respond aggressively yourself, but do not do so because your opponent has egged you into a useless game of whose gorilla is bigger. Take a tip from Ani Di Franco: "If you play their game, girl, you?re never gonna win." Face Up and Sing, Out of Range, Righteous Babe Records (1994).
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Question: What is this laundry list of things the C&D says will happen if I don't obey?
Answer: Your opponent may describe a parade of horribles to demonstrate with exquisite detail what it will do to you unless you capitulate. This list generally includes, but is not limited to:
(1) ceasing use of the allegedly infringing mark or surrendering the domain name;
(2) rendering an accounting;
(3) posting corrective advertising;
(4) obtaining an injunction;
(5) recovering costs and fees. Though these things sound awful, they are not medieval tortures (although that may be a function of the fact that Torquemada never thought of them). Ceasing use of the mark is self-explanatory: your opponent wants you to stop using the mark. Your opponent might also ask you to surrender your domain name if they believe the domain name causes (or is likely to cause) confusion with their trademark. For example, under ICANN rules (the UDRP), you may have to surrender your domain name if the following three conditions are satisfied:
(1) your domain name is identical or confusingly similar to your opponent?s;
(2) you have no legitimate right or interest in the name (in other words, you are not using the name to conduct a bona fide business or for non-commercial fair use purposes); and
(3) your name is registered and used in bad faith. An accounting basically means that you disclose the following information to your opponent:
(1) the date you began using the allegedly infringing mark;
(2) the names of individuals who knew of the use when it began;
(3) the amount of traffic at your web site or business at your store; and
(4) your profits and revenues during the time you used the allegedly infringing mark. Corrective advertising means you give notice to the public that you were using a mark confusingly similar to your opponent?s, and that you are not affiliated with your opponent. An injunction is a judicial order to do something. An injunction can prevent you from using the allegedly infringing trademark. Some provisions of the Lanham Act permit a trademark holder to recover attorney?s fees and court costs from an infringer. That your opponent has listed these various remedies does not mean that it is entitled to them; do not confuse the smorgasbord of legal options with your opponent?s right to inflict any of them on you.
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Question: What is disparagement?
Answer: As defined in Black's Law Dictionary (7th ed. 1999), disparagement is "A false and injurious statement that discredits or detracts from the reputation of another's property, product, or business. To recover in tort for disparagement, the plaintiff must prove that the statement caused a third party to take some action resulting in specific pecuniary loss to the plaintiff."
[back to notice text]
Question: What is disparagement?
Answer: As defined in Black's Law Dictionary (7th ed. 1999), disparagement is "A false and injurious statement that discredits or detracts from the reputation of another's property, product, or business. To recover in tort for disparagement, the plaintiff must prove that the statement caused a third party to take some action resulting in specific pecuniary loss to the plaintiff."
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