1:47pm PT by Eriq Gardner
Reese Witherspoon Moves Closer to Trial Against Sears Over Imitation Jewelry
At a Los Angeles court hearing on Tuesday morning, actress Reese Witherspoon took a big step toward putting Sears on trial for using her name and image to market jewelry.
Witherspoon filed her lawsuit in 2013 over hundreds of items for sale, including necklaces, earrings and imitations of her wedding ring. She alleged the products were sold as “Reese Ring” and “Emitations Reese Witherspoon Comparable Wedding Ring” and that, in some instances, her picture was shown to potential buyers.
The lawsuit targets about a dozen companies, and a few have settled, but the largest defendant, retail giant Sears, has not. Witherspoon claims that Sears is liable for what’s being sold in its online marketplace by third-party vendors, who are co-defendants in the case.
After an extensive discovery process, which included a deposition by Witherspoon herself last June, Sears brought a summary judgment motion, arguing that Witherspoon’s property and privacy claims were barred by section 230 of the Communications Decency Act. Sears maintained that it did not “create, develop or alter the content at issue in this lawsuit” and said that such content was “provided entirely by third-party sellers.”
Section 230 states that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." In English, that means that online intermediaries can’t be sued for hosting speech of others. As an example, for those looking to sue for defamation, The Hollywood Reporter is not deemed the "publisher" of anything written by readers in the comment section.
The safe harbor law specifically doesn’t apply to intellectual-property claims, though. Over the years, there has been some legal debate over the interpretation here. In its summary judgment motion, Sears argued this only meant federal intellectual property and that Witherspoon’s attempt to protect her rights of publicity (her name and image) and common law trademarks under California law were barred by section 230. In support of this position, Sears cited a Ninth Circuit opinion involving adult publisher Perfect 10 (this one). Witherspoon’s lawyer argued that case was decided wrongly, was roundly criticized and therefore was not binding.
Judge Gerald Rosenberg gave Witherspoon the victory on this issue, denying Sears’ summary judgment related to her intellectual-property claims.
Witherspoon, though, lost her privacy claim against Sears after a judge found this claim was barred by section 230 of the CDA.
The actress disputed that Sears was a “provider” of an “interactive computer service,” arguing that the website was part of a “retail family” and that Sears "regularly conducts transactions with customers." She said that Sears “is unlike eBay” in that it’s no “passive venue or conduit where users view items posted entirely by other users.” She also argued that the CDA doesn’t protect an “information content provider” and claimed that when Sears rounded up all jewelry items containing her name into a spreadsheet, there were at least 20 items omitted.
"Plaintiff's evidence that the spreadsheet omitted some offending content is not sufficient," responded the judge in his order. "Plaintiff's evidence indicates that the omitted offending content were all third-party seller listings. Given the nature of third-party seller listings, Plaintiff must not only demonstrate that the spreadsheet omitted offending content but that Defendants contributed to the origination of offending content. Plaintiff fails to do so."
So Witherspoon lost one of her five claims against Sears, but she still has the opportunity to fight the company for allowing vendors to use her name on jewelry on the company's website. She's represented by attorney Charles Harder. A trial currently is scheduled for Feb. 22, 2016.