Editors Note: Kevin E. Flynn is a patent attorney and a member of the Research Triangle Park law firm of Daniels Daniels & Verdonik, P.A.

RESEARCH TRIANGLE PARK … Normally I write about patent issues, but not today.

This topic did, however, come to my attention while I was doing background research for my recent LocalTechWire article on invention promotion firms. (See www,localtechwire.com/article.cfm?u=8338 .) At the time, I saw that the owners of some of the web sites containing facts or complaints about particular invention promotion firms had been sued by those firms.

The suits were variants on what have grown to be known as “SLAPP” suits; SLAPP is an acronym for Strategic Lawsuits Against Public Participation. In the classic sense, these suits are used to silence an individual who is actively trying to get a governmental entity to do something that is contrary to the interests of the party bringing the suit.

For example, if one or more people urge a governmental entity to not grant a permit to a company based on past environmental problems associated with that company, the company may try to silence those people by suing them with a SLAPP suit. SLAPP suits come in a variety of forms including defamation and various types of interference with business relations.

Suits Don’t Seek Damages or Injunctions

Such suits are not filed in order to win damages or even injunctions in court. These suits are unlikely to win as they are contrary to the strong principle of protecting First Amendment rights to free speech and for citizens to interact with the government. Rather, the SLAPP suits are meant to impose costs and distraction on individuals who cannot afford the time and money to fight such suits. Unless an advocacy group steps forth to lead the defense, the defendant is often backed into accepting a settlement that includes an agreement to stop the offending statements and a gag order to prevent the details of the settlement from being released.

An excellent summary of the nature of the problem and the various efforts to counteract SLAPP suits can be found at the California Anti-SLAPP Project at www.casp.net ). One of the encouraging developments noted on casp.net is the addition of specific immunity provisions that make it easier for defendants to get certain SLAPP suits dismissed. Unfortunately, these immunity clauses are limited to SLAPP suits brought against people who are directly interacting with a governmental entity.

While this is an important step, there is a totally different class of people who also provide an important contribution to public discourse.

Stifling Public Discourse?

Who are they? They are the people who post web pages that complain about shoddy products or broken promises from certain companies; the web page authors who were sued by invention promotion firms fall into this category. These people were providing a warning in a way that it could be found by those considering using an invention promotion firm, which you could view as point-of-sale warnings that provide some balance to the point-of-sale marketing that comes over the web.

To see how ubiquitous this point-of-sale marketing really is, try typing in the terms “invention” and “patent” into a search engine to see what sort of advertising is served up based on those keywords. Typing “invention promotion firm SLAPP” in a search engine will lead you to various stories about the use of SLAPP suits against those who post web pages that are extremely critical of specific invention promotion firms.

The problem of SLAPP suits against those who complain about specific companies is not limited to those who complain about invention promotion firms. The home page of www.webgripesites.com (which is a site dedicated to “[c]hronicling web ‘gripe sites’ and other sites confronted with legal action”) sets out the stakes:

“Prior to the advent of the web, most speech could reach only a limited audience – family, acquaintances, neighbors. The web has dramatically changed that. Now, a single voice can reach a potential audience of millions, and those who are discussed are painfully aware of it – and may be willing to devote tens or hundreds of thousands of dollars in an attempt [to] silence a voice of complaint.”

The most recent well-known lawsuit against a gripe site in North Carolina is a suit filed in the U.S. District Court in Charlotte by Alvis Coatings, Inc. against a Georgia couple, the Townsends, who have created a gripe site to complain about their dissatisfaction with a Spray On Siding® product manufactured by Alvis Coatings.

While I can’t say whether the Townsends are being unreasonable in rejecting an offer by Alvis Coatings to fix the problems with the coating as applied by a third party contractor, I can say that it seems extreme for Alvis Coatings to sue for trademark and service mark infringement in violation of Federal law. Trademarks are protected so that consumers do not get confused about the source of goods…thus preventing a copycat from selling low quality goods to consumers who thought they were buying goods from a reputable supplier.

Although the spelling of the URL for the Townsends’ web site – www.spraysiding.com – is very close to the plaintiff’s www.sprayonsiding.com, no one going to the Townsends’ site would fail to recognize that it is a gripe site. No one is going to think that the site is a provider of spray on siding. Nor is anyone going to believe that this gripe site is affiliated with Alvis Coatings.

Courts Help Individuals — So Far

Recent court decisions have been supportive of individuals who seek to air their complaints about a company, even when they reference trademarked products in the site or the site’s URL (see Trademark Lawsuits: The Price of Online Griping at http://www.law.com/jsp/article.jsp?id=1101738481523). The existence of favorable court rulings is cold comfort to individuals who cannot afford to spend legal fees for years in order to actually get their cases in front of a judge.

While the courts have procedures to stop the process part-way through in order to cull out meritless cases, these efforts cost money and often do not work to cull out enough meritless cases as judges know that culling out a case may lead to an appeal which can lead to an official finding that the judge was wrong to cull out the case. In contrast, letting the case move forward is low risk to the judge as that decision cannot lead to an appeal and is likely to result in a settlement of some sort (although in this case presumably a settlement in favor of the well-funded party with the weak legal case).

Possible Solutions

Perhaps what is needed is a screening process that throws out the abusive SLAPP suits before they can be filed. This is a modification of an idea put forward by Senator Edwards as a partial cure for the filing of frivolous malpractice suits. A number of states have a vetting process before a malpractice case can be filed, and one state has implemented as system requiring an affidavit that someone vouches that there appears to have been malpractice. The same thing could be done for SLAPP suits.

On the other hand, perhaps a screening panel is not the answer. It could be that special legislation to protect griping consumers from such treatment is needed, akin to the legislated limits on debt collectors’ heavy handed tactics. Perhaps the Federal trademark laws need to be fine-tuned to specify that trademark suits are not to be filed against griping consumers as the use of the trademark is necessary in order to identify the specific good or service being discussed.

Perhaps a new top level domain name is needed to identify a gripe site (.sux might work). Such a new top level domain name would make it unlikely that a consumer would go to a gripe site while intending to go to a company website, thus removing one of the sources of alleged confusion used as a basis for SLAPP suits.

Whether or not any of those solutions are adopted, the problem of SLAPP suits is not going away and will increase as more companies feel threatened by the power of the Internet to allow consumers to air complaints. Courts and legislatures will have to define new limitations on the use of the courts to reign in the SLAPP suits, in order to prevent our First Amendment freedoms from being further threatened.

Daniels Daniels & Verdonik, P.A. has been serving the legal needs of entrepreneurial and high technology clients for more than 20 years. Kevin Flynn combines the knowledge and experience that he has obtained as an engineer, lawyer, and patent lawyer to provide guidance to clients on a range of patent and other legal issues. Questions or Comments can be sent to kflynn@d2vlaw.com