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RFC Express - New IP Lawsuits

Dealing With Gripers and Critics: The Intersection of Publicity, the Law and Free Speech

By James E. Griffith and Eric M. Schmalz of Foley & Lardner LLP

James E. Griffith is senior counsel in the Chicago office of Foley & Lardner LLP, where he is a member of the General Commercial Litigation, Trademark, Copyright & Advertising, and IP Litigation Practices. Mr. Griffith may be reached at Eric M. Schmalz is an associate in the Milwaukee office of Foley & Lardner LLP and is a member of the Trademark, Copyright & Advertising Practice. Mr. Schmalz may be reached at

Few things are more frustrating and damaging to a business than negative publicity. Because publicity is a nebulous concept, it can be difficult to control or correct. Worse, as websites and weblogs become easier to develop, more disgruntled customers, employees or even competitors have access to a public complaint forum. Such forums can have a widespread impact on potential customers.

A business's first reaction to criticism may be an attempt to silence it through legal action, but doing so can have unintended consequences. Because such online criticism and sites devoted to outlandish accusations are often run by disgruntled persons, they are unlikely to capitulate when threatened. To the contrary, the critics may respond by publicizing the threats, attempting to further demonize the business. The tale of big business stifling the free speech of the little guy may be on...

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