Amici Public Citizen, the Electronic Frontier Foundation, and the Citizen Media Law Project have come the rescue of Blockshopper.com, Brian Timpone, and Edward Weinhaus in their defense against law firm Jones Day’s trademark infringement suit.
In case you haven’t heard, Jones Day filed suit over the real estate Web site’s posting photos of two Jones Day associates who were involved in real estate transactions. The Web site also mentioned the firm by name and linked to the associates’ biographies on the firm’s website.
The suit alleges trademark infringement and dilution, and seeks an injunction, damages, and attorney’s fees. (Brief additional background here; commentary here and throughout the blogosphere).
Amici make a strong case in support of the defendants’ motion to dismiss:
“In this case, plaintiff is abusing a trademark to suppress legitimate, non-infringing speech, with potentially significant implications for other online speakers. The Internet offers unprecedented opportunities for speakers and audiences to find each other and exchange valuable information about products, research, viewpoints, and other important topics. That exchange cannot happen if trademark holders can prevent others from using their marks, accurately, in the ordinary course of communication, to refer to the holders themselves. But that is precisely what Jones Day seeks to do here. Its efforts must fail.”
The brief goes on to argue:
“A large law firm with overwhelming resources seeks to use trademark law to prevent a small real estate news site from conveying accurate information about the firm and its associates. If Jones Day’s trademark theory were correct, no news site or blog could use marks to identify markholders, or links to point to further information about the markholders, without risking a lawsuit. But Jones Day is wrong. The use in question is clearly a fair use protected by the First Amendment and by the Lanham Act. Moreover, this law firm, as powerful as it may be, is hardly famous enough to deserve the extraordinary protection of the federal antidilution law. Jones Day’s federal claims are baseless and amici urge the Court to dismiss them.”
Well said. I’d be out of business (or at least out of the blogging business) if I couldn’t write a story about Microsoft, Starbucks, or Amazon.com without using those companies’ trademarks in my posts.
Let’s hope plaintiff’s over-reaching yields case law that further protects the fair use of trademarks.
Thanks to the Legal Satyricon for posting on this story.