In a setback for the QVC shopping network, a federal judge has said that vitamin marketer Andrew Lessman, who sells supplements on the Home Shopping Network, may continue to use his blog to criticize competing products sold by QVC.
U.S. District Court Judge Sue Robinson in Wilmington, Del. ruled that while Lessman's blog posts about the QVC products potentially were misleading, the company wasn't entitled to an injunction because it had not shown the statements confused consumers. Specifically, Robinson ruled, users' comments posted to Lessman's site did not indicate that people were eschewing QVC products because of Lessman's allegations.
Although Robinson denied QVC's motion for a preliminary restraining order against Lessman, QVC still will have an opportunity at a later date to present surveys and other evidence that could show consumers were confused by the online statements.
The legal dispute stems from posts Lessman made in January about two supplements sold by QVC. One post, dated Jan. 20, alleged that one QVC product was composed of "99% additives."
"I have long received your questions regarding QVC's vitamins, but I followed my Grandma's advice" 'If you have nothing nice to say, then say nothing,'" Lessman's post begins. "So I said nothing; however, that will now change."
The post went on to criticize a QVC supplement, saying that the active ingredients make up only 1% of the product. "Perhaps a bigger tablet fools you into thinking you're getting more, but who knows?" he writes.
Lessman added that "a significant body of troubling research" links one of the ingredients in QVC's products to cancer. He also directed viewers of HSN to his blog to read his allegations about QVC's products.
QVC filed suit against Lessman in U.S. District Court in Delaware in February, arguing that he violated federal and state false advertising laws. QVC requested a temporary restraining order requiring Lessman to refrain from making disparaging remarks online.
Georgetown University law school professor Rebecca Tushnet, who drew attention to the decision on her blog, said it made sense based on the limited amount of available information about whether consumers were confused, but added that "more evidence could make the difference."
Lessman himself originally sold products on QVC, but defected to HSN in 1997. He was in talks to return to QVC, but the discussions collapsed earlier this year. Shortly afterwards, he began criticizing QVC online, according to the court opinion.