Golo, LLC v. Highya, LLC
310 F. Supp. 3d 499
E.D. Pa.2018Background
- GOLO, Inc. sells a weight-loss program online and sued two review sites, HighYa LLC and BrightReviews LLC, after editorial and user reviews criticized GOLO's claims.
- Defendants operate review websites that generate revenue from advertising (AdSense, Media.net) and do not sell competing products; HighYa disclosed an affiliate relationship with BowFlex.
- Reviews were editorial pieces based largely on publicly available material from GOLO's website plus user comments and site-moderation policies; defendants revised or removed the challenged reviews after GOLO complained.
- GOLO asserted Lanham Act claims (false advertising and false association) and Pennsylvania claims for unfair competition and trade libel; defendants moved to dismiss under Rule 12(b)(6).
- The court evaluated whether the reviews constituted commercial speech under the Lanham Act and whether trade libel elements (falsity, pecuniary loss, malice, and timeliness) were adequately pleaded.
- Holding: Court dismissed all claims without prejudice — Lanham Act and state unfair competition claims fail because the reviews were not commercial speech; trade libel fails for lack of pleaded falsity and, as to HighYa, statute of limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reviews are "commercial speech" under Lanham Act | Reviews were economically motivated: site ad/revenue model and affiliate ties meant reviews aimed to affect purchasing/clicks | Reviews are informational/opinion pieces that do not propose transactions or directly sell competing products; ad revenue is incidental | Not commercial speech; Lanham claims and PA unfair competition dismissed |
| Whether plaintiff pleaded false advertising/falsity and direct commercial injury | Reviews contained factual inaccuracies about studies, program focus, and used a misleading title causing pecuniary harm | Statements were framed as opinion/observations based on GOLO's website; plaintiff didn't show actionable falsity or direct Lanham-type injury | Plaintiff failed to plead falsity and direct commercial injury for Lanham relief |
| Whether use of GOLO's name caused false association/confusion under Lanham Act | Use in review titles and prominence in search likely to cause consumer confusion and harm | No use that suggests sponsorship/affiliation; no evidence of intent to divert customers to competing goods | Insufficient to show likelihood of confusion; claim dismissed |
| Trade libel (PA): falsity, malice, pecuniary loss, statute of limitations | Statements and user ratings implied GOLO was a scam and caused pecuniary loss; revised posts within limitations | Many challenged statements are opinion or reasonably based on GOLO's website; HighYa posting was over one year before suit | HighYa-related trade libel time-barred; BrightReviews trade libel inadequately pleaded for falsity (and thus dismissed) |
Key Cases Cited
- Farah v. Esquire Magazine, 736 F.3d 528 (D.C. Cir. 2013) (Lanham Act applies only to commercial speech)
- Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008) (commercial-speech test: ad, reference to product, economic motivation)
- Tobinick v. Novella, 848 F.3d 935 (11th Cir. 2017) (editorial critiques on ad-supported sites can be noncommercial, informative speech)
- Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) (limits on Lanham Act standing and commercial-speech context)
- U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914 (3d Cir. 1990) (distinguishing commercial speech proposing transactions from other speech)