Urban Dictionary Definition Inadmissible in Trademark Case

In Stay You, LLC v. H&M Hennes & Mauritz, LP (S.D.N.Y.), plaintiff is claiming that defendant's use of the phrase "Stay True Stay You" infringes plaintiff's trademark "Stay You," and the defendant is arguing (among other things) that "the Urban Dictionary definition of 'Stay You" is strong evidence that the phrase is in common usage and therefore also diminishes the strength of Plaintiff's mark." But Judge Kimba Wood concluded Friday that the definition was inadmissible:

There is little Second Circuit case law regarding the admissibility of Urban Dictionary definitions. Where courts have referenced Urban Dictionary, they have typically done so only in passing to explain unfamiliar slang words or common phrases….

[T]he definitions should be excluded [in this case] under Rule 403 due to their lack of probative value. Urbandictionary.com is a crowdsourced online dictionary that allows users to anonymously publish their own definitions. The website provides few content guidelines for users. Content Guidelines, URBAN DICTIONARY (instructing users to "be creative [and] have fun"). When a user submits a definition, it goes through a perfunctory review process before it is published online. A single word can have hundreds of definitions submitted by various users over the years. Due to the constantly expanding nature of the website, Urban Dictionary explicitly states that it "does not and cannot review all Content published to the Website or created by users accessing the Website[.]"

For these reasons, the Urban Dictionary definitions upon which Plaintiff relies are unreliable. Their probative value is substantially outweighed by the danger of (1) confusing the issues (i.e., the jury may incorrectly assume the definitions of "Stay You" or "Stay True" are at issue), (2) misleading the jury about the strength of Plaintiff's mark or Defendant's fair use defense, or (3) wasting time….

Comments

[Brett Bellmore]

So, would google N-Gram have faired better?

[BrotherMovesOn]

I don’t know but as the urban dictionary is the only print corpus where these words can be found (it’s conversational slang, after all) would it even show up? I don’t know, as a relatively new user.

[Dan Schiavetta]

I thought Urban Dictionary was a joke, giving wildly inappropriate definitions. Now I see that some consider it a serious site?

[Ridgeway]

The definition of "Upper Decker" is pretty spot-on.

[BrotherMovesOn]

Captcrisis it's not a joke or satirical site.
Whether or not it can be used as evidence is now answered, at least in this forum, and for now.
It's 'educated' me a couple of times almost every year!

[Gandydancer]

What is this thing called "a serious site"?

I for one can see no reason why the statistics of user definition submissions on "Stay You" and views thereof cannot be informative. Maybe it wouldn't prove to be, but categorically excluding it as possible evidence doesn't seem called for.

Kimba Wood, Kimba Wood... ah, THAT one: Clinton's AG nominee with the wetback nanny problem.

[BrotherMovesOn]

I thought for a sentence or two that you were going to offer a welcome legal perspective on this somewhat interesting case, but see that you can't help but go political. In this particular suit?
Really?

[Gandydancer]

So sad that you can't walk and chew gum at the same time.

[Rev. Arthur L. Kirkland]

with the wetback nanny problem

The Volokh Conspiracy . . . the only "legal" blog (associated with several mainstream law schools, to their regret) at which one can be censored for calling a conservative a "sl_ck-j_w" or a "p_ssy" or a "c_p succ_r," but at which vile racial slurs, homophobic slurs, and terms such as "wetback" are not only permitted but indeed encouraged by the law professors who cultivate an audience of disaffected, roundly bigoted right-wing culture war casualties.

How are those "civility standards" -- the ones you expressly claimed to be enforcing when muzzling liberals and libertarians to flatter conservatives -- coming along, Volokh Conspirators?

Carry on, clingers. But only so far as better Americans permit.

[Roger S]

The Urban Dictionary seems like a good source of evidence about public usage of a slang term. Where else? The judge seems to be concerned that users of slang are abusing the language.

[Frank Drackman]

Umm. maybe you could have grown up in an "Urban" environment, watched TV/Movies in the last 50 years, had children who had to attend "Urban" Screw-els, or interact with "Urban" peoples occasionally,
Hey, I admit, took me awhile to realize what a "Harlem Briefcase" was (I had one) no, I'm not telling you, because it's embarrassing,

Frank "Where's my "Off the Wall" Cassette?!!?!??!?

[John F. Carr]

Urban dictionary is a mix of hoaxes, newly made-up words, inaccurate definitions, and genuine slang. The court would be better served by an expert witness.

[Roger S]

An expert witness could be better. But is it likely? Most expert witnesses are hired guns with phony arguments.

[John F. Carr]

Admitting expert witness testimony is a familiar process and the system has chosen to accept the risk. If you don't like the opponent's hired gun, hire a gun of your own. More legal fees, more expert fees, everybody wins.

[KenveeB]

"the defendant is arguing (among other things) that "the Urban Dictionary definition of 'Stay You" is strong evidence that the phrase is in common usage and therefore also diminishes the strength of Plaintiff's mark.""

If the point of admitting the definition was to show that the definition was in common use, then the accuracy of the definition doesn't matter. You're not trying to say "look, this is the definition of this phrase!" You're just trying to say "look, lots of people are using this phrase." It's a different analysis.

[WuzYoungOnceToo]

If the point of admitting the definition was to show that the definition was in common use, then the accuracy of the definition doesn’t matter.

I’m assuming you’ve made an error in phrasing here, because if indeed the point was to show that the definition itself was in common use (ie, the word/phrase is commonly used to convey the meaning described in the corresponding UD entry) then the accuracy of the definition does in fact matters very much. But if you meant that the point was to show simply that the word/phrase itself was in common use, regardless of its meaning then yes, I’d agree with your assessment.