This story goes back to 2009, but it is illustrative and helpful.
Beginning in April, 2009, I began posting complaints from patients of Clear Choice Dental Implants Centers, a nationwide chain of dental implants clinics. I had installed a form on my website that solicited these complaints. This attracted the attention of the Clear Choice people, and on September 16, 2009, an attorney from Dallas representing the company sent me a threatening letter. The letter said, in part, “…by deceptively pretending to take a survey when, in fact, you are just gathering names and information for marketing purposes in connection with your website www.infinitydentalweb.com, your website violates the Lanham Act, 15 U.S.C. § 1051, et seq., and Federal Trade Commission Act and state laws regarding unfair and deceptive advertising …” They made the following demand: “Demand is hereby made that within sever (7) days from the date hereof, you cease and ddesist from soliciting private information regarding our dustomers and deceptively gathering information from ClearChoice customers under the pretense of taking a survey. Should you fail to comply with our demand we will have no alternative but to pursue all legal remedies against you.”
They send this letter via express courier and fax.
I responded by regular mail and by fax and said the following, in a letter dated September 17, 2009:
“I had thought that our website was clear in indicating that we were seeking comments about Clear Choice Dental Implants Centers from people who had visited your centers for the purpose of advising other visitors to our website of what they could expect from Clear Choice. But, reading your fax, it appears that this purpose was not clear to you.
“Accordingly I have revised the page where we solicit comments about Clear Choice to make that more clear.
“Thank you for bringing this to our attention.”
I was also using some of the complaints we had received and posted them on the websites of two of our clients, and both of those clients got threatening letters from the attorney alleging trademark infringement. So I posted a comment on my blog about these threats. I titled the post, “Is Clear Choice attempting to silence complaints?” In the post I said:
“I believe that Clear Choice and their attorneys know full well that such claims of trademark infringement are bogus. Trademark law specifically allows for the use of a competitor’s trademark in comparative advertising or for the purposes of news commentary or criticism. I also believe they know that many dentists will simply agree to their illegal demands to avoid a possible legal battle, and that this will silence criticism.”
Later on in the post, I further referenced these letters with this comment: “We have this legal bullying tactic, which I associate with enterprises that feel they can’t stand reasonable scrutiny.”
While both clients decided they didn’t want to risk a legal fight with Clear Choice, I pressed on with my own blogging strategy and continued to solicit comments. I did get some positive comments which I posted also. I didn’t hear anything more from Clear Choice until April 15, 2010, when I got a call from the Clear Choice CEO in Denver. Stay tuned to this blog, where I will report on that phone call and a subsequent tour of their Phoenix facility.