Realself.com is a site where people who have undergone plastic
surgery review various products and procedures. It has been sued by
Lifestyle Lift, a facelift company which wants to stop the site
using its name in reviews.
Realself has counterclaimed, accusing Lifestyle Lift of
publishing fake positive reviews on its site which purport to be
from ordinary users, a practice sometimes known as
'astroturfing'.
Realself founder Tom Seery told OUT-LAW
Radio that his firm had stood up to the trade mark lawsuit
because it believed that consumer reviews must be allowed to be
impartial and genuine.
"We believe that we have to vigorously defend the rights of our
consumer community members to participate in an open and free forum
that's unbiased," said Seery. "So we are willing to step up and
protect that right so we'll do whatever it takes to continue
operating as we do today."
Lifestyle Lift's lawsuit claims that because Realself.com
contains its trade mark as well as advertising for other plastic
surgery products and procedures, consumers could be confused and
think that Lifestyle Lift was a part of Realself.
Seery said that he sees no merit in the claims. "We believe that
these allegations are completely not true, we are asserting that
they are just using trade mark law to silence the critics in our
community who have come forward to share not so positive
experiences with Lifestyle Lift," he said.
One such testimony came from a Lifestyle Lift user calling
themselves Scarface 55 and who described the experience with the
procedure as "a true disaster".
"I still look the same after two procedures, but now I have
horrific scars down both sides of my face, stabbing pain, incessant
itching, sutures coming through the skin, lumps & bumps, my
ears are in the wrong place causing pain and each time I shower my
ears now fill with water," she said, claiming that she was given
just three minutes in which to sign the paperwork related to the
operation.
The lawsuit could have implications for the scores of product
review websites which allow consumers to read what other users of
products or services think of them. Holiday reviews have been a
particularly popular subject of consumer reviews.
But trade mark law expert Judith Tonner of Pinsent Masons, the
law firm behind OUT-LAW.COM, said that if such a case arose in the
UK it would be unlikely to succeed.
Trade mark law is designed to stop a company claiming another
company's products as their own, and infringers must have caused a
consumer confusion. The two companies, then, must share an business
type, she said.
"The people that are complaining of the infringement provide
some sort of cosmetic procedure. The people that host the forum
provide a forum," she said. "Would people looking at that forum
think that that web host or company would also be able to provide
you with their own cosmetic procedures?"
"Possibly not, and there's certainly an argument that magazines
and online comment sites are in a different area of trade so there
isn't the requisite likelihood of confusion," said Tonner.
