Fischer v. Dean Eric Stiglitz, Laurie Anne Herboldsheimer, Golden Rule Honey, LLC

Counsel

*458James H. Fischer, New York, NY, pro se., Anna K.C. Bennett, Dolbec, McGrath & Bennett, North Quincy, MA, for Defendant., The pro se Plaintiff, James Fischer ("Fischer") has brought suit against the Defendants seeking equitable relief and monetary damages based upon online communications critical of his theories and methodology of beekeeping. The Defendants have moved to dismiss his Amended Complaint. For the reasons set forth below their motion is granted., 15 U.S.C. § 1125(a)(1)(A) makes liable "any person who ... uses in commerce any word, term, or name ... which ... is likely to cause confusion, or to cause mistake, or to deceive as to an affiliation, connection, or association, of such persons or another person ... sponsorship, or approval of his or her goods, services, or commercial activities by another person." To survive dismissal, Fischer's claim for relief under this section of the statute requires factual allegations of conduct that created a likelihood of confusion among potential purchasers regarding his sponsorship or approval of a product or services provided by the Defendants. Gronk Nation, LLC v. Sully's Tees, LLC 37 F.Supp.3d 495, 498 (D.Mass. 2014). Under the facts plead, including the numerous postings and emails that are attached to the complaint, I do not find that any of the complained of postings would have confused online participants as to any affiliation of Fischer with the Defendants. Most of the references to Fischer reflect only his disapproval of the Defendants' methods, and there is no intimation that Fischer endorsed any goods or services., 15 U.S.C. § 1125(a)(1)(B), prohibits false and misleading descriptions of products and services in interstate commerce. In order to sustain a claim for false advertising, the Plaintiffs must prove that the Defendants; (1) made a false and misleading description of fact, (or representation of fact) in a commercial advertisement, about his own or another's product; (2) that the misrepresentation was material in that it was likely to influence a purchasing decision; (3) that the misrepresentation actually deceived or had a tendency to deceive a substantial segments of its audience; (4) that the Defendant placed the false and misleading statement in interstate commerce; and (5) that the Plaintiff has been or is likely to be injured as a result of the misrepresentation. The Plaintiff claims that the dispute between the Defendants and others as to proper beekeeping methodology creates an air of controversy which benefits the Defendant's products. There are no allegations in the complaint, or in the posting attached to the complaint, that evidence any intent to induce a purchaser to buy the Defendant's goods. The statements reflect a fair debate over proper beekeeping methods and a defense of the methodology espoused in The Guide., The Plaintiff alleges that the Defendants made material misrepresentations as to his commercial activities. Again a careful reading of the complaint and attachments do not reveal any mention of the Plaintiff's products in any commercial or advertising, or promotional context, except for a reference to a Fischer product in a satirical vein. Further, there are no *460allegations that any statements relate to a quality or characteristics of Fischer's goods or services or how they were likely to influence purchasing decisions. Nor are there any specific allegation of how the Defendant's statements caused any harm., The fourth cause of action alleges violation of general laws Chapter 214 § 3A's right of privacy provisions. Under that statute, liability is determined not when "the defendant makes an incidental use of the Plaintiffs name, portrait, or picture" but when "the defendant uses the Plaintiff's name, portrait, or picture deliberately to exploit its value for advertising or trade purposes." Tropeano v. Atlantic Monthly Co., 379 Mass.745, 749, 400 N.E.2d 847 (1980). There are simply no factual allegations which would cause one to believe that there was any exploitation for commercial purposes.