I actually recently used some online reviews in a case myself. I think their usefulness to document the way the public identifies a particular business can be incredibly helpful. The federal court for the Eastern District of Arkansas agrees:
U.S. District Court Judge Brian Miller in the Eastern District of Arkansas ruled that the 18-year-old national chain was likely to prevail in its trademark infringement claim because consumers were confused by the other “Chipotles,” which operated in Beebe and Jonesboro.
Critically, Miller ruled that posts on review sites “reflect confusion as to the ownership of defendants’ restaurants.”
“One Web site, www.urbanspoon.com, even lists plaintiff’s Web site as the Web site of defendants’ restaurants,” Miller added in his written decision, issued last week.
The national Chipotle filed suit last November, arguing that the similarly named restaurants infringed on the chain’s trademark. The company alleged that the Beebe location opened in late 2007, and the Jonesboro restaurant opened last March.
Chipotle included in its court papers emails from consumers, including complaints about the Montano restaurants, as well as printouts of comments and reviews that appeared on Associated Content, Topix and UrbanSpoon. The Associated Content review was of Montano’s “Chipotle,” but the piece referred to the restaurant by the name of the national chain, “Chipotle Mexican Grill.” The critique itself was generally positive, with the reviewer complaining only that “the floor sometimes needs attention.”
It’s obviously very persuasive evidence in a trademark dispute that there is some actual customer confusion out there, rather than merely a possibility of confusion. The reviews and e-mail documents produced by the plaintiff, Chipotle, persuaded the court that this was an actual problem, as opposed to a potential problem.
The evidence wasn’t all positive for Chipotle, though:
Not all online commenters were duped. At the Jonesboro forums on Topix.com, several users submitted comments saying that the new eatery wasn’t affiliated with the national chain. “Wish it was the real Chipotle Grill,” said one commenter in January 2010. “Wish this one that is coming to Jonesboro wasn’t just another same ole same ole trying to deceive people under a franchise name.”
Although that sort of language doesn’t seem to directly speak to customer confusion, indeed it seems to show that the customers weren’t confused about the store’s branding, it still seems somewhat helpful to the plaintiff, as it supports their argument that this other store was attempting to trade on their brand name’s good will.
The MediaPost blog references Evan Brown’s Internet Cases blog, which had this to say:
The case gives a good example of how companies (and their competitors) should be aware of how their brands appear in social media. Evidence of actual confusion is a powerful tool for a trademark plaintiff (and a potentially damning one for a trademark defendant). Smart companies will ensure they remain aware of how their marks and overall brand identity are being put forth, even off the beaten path on the web.
I think I’d add that online review sites really aren’t “off the beaten path on the web” anymore, as a lot of them have their own apps for mobile devices and some of them show up very prominently in Google searches, particularly for restaurants. Lots of people, including myself, use them when picking someplace to do business with.