Blog Posts Not Reliable Evidence of Consumer Confusion–Blue Bell v. Denali

Blue Bell Creameries, L.P. v. Denali Co., LLC, 2008 WL 2965655 (S.D. Tex. July 31, 2008)

In a trademark infringement lawsuit over whether “Mooo Tracks” ice cream infringes “Moose Track” ice cream, the plaintiff tried to introduce some blog posts as evidence of consumer confusion. The court says no for fear that they are shill postings:

In this case, Denali offered Internet blog entries as evidence of actual confusion. The Court declines to consider these postings in reaching its decision. The Court is concerned, on this record, that the blog entries lack sufficient indicia of reliability.FN4 Nothing is known about the persons who made the entries, about whether they are related in any way to either party or whether they are describing true events and impressions. Moreover, the authors’ meaning and the import of the blog entries are far from clear.

FN4. This should not be construed as a ruling by the Court that entries on Internet blogs could not, on a different record, be reliable and admissible.