A Jones for masochism

What, Jones Day doesn’t know about trademark law?  Hardly thinkable.

Well, maybe it doesn’t know that in the Internet age, you can’t send comically meritless cease and desist letters on the assumption that the recipient will merely curl up and die when he gets it?  No, Jones Day has to know that.

Is it conceivable, then, that Jones Day doesn’t know the cardinal rule of Internet antidisasquelchanarianism — that the best way to make sure the whole Internet links and links and links to something you don’t want them to link is to threaten them if they dare link to it one more time?  No, this is not conceivable!

So what on earth is the explanation for this, as reported by Sam Bayard?:

Paul Alan Levy of Public Citizen published a fantastic post on Friday about big law firm Jones Day‘s lawsuit against BlockShopper.com, an online real estate news website covering Chicago, South Florida, Las Vegas, and St. Louis. The website reports on what’s happening in the local real estate markets — who’s buying, who’s selling, where, what price, etc.  It focuses on fancy neighborhoods where lawyers and other professionals frequently buy homes and often mentions the professional affiliations of the buyers and sellers.  The lawsuit arose out of BlockShopper’s reports on two condominium purchases by Jones Day associates Dan Malone Jr. and Jacob Tiedt.  In the reports, BlockShopper used Jones Day’s trademark (its name) to identify the law firm as Malone and Tiedt’s employer and linked from each associate’s name to their biographies on the firm’s website (here and here).  Levy aptly characterizes the absurdity of Jones Day’s claims:

According to Jones Day, linking to its web site dilutes its trademark and creates a likelihood of confusion.    But that is preposterous.  The link is in connection with a comment on Jones Day; when a trademark is used to comment on the trademark holder, the use reinforces the association with the trademark holder, rather than blurring it, and besides use for commentary is expressly protected as fair use under the Lanham Act as amended in 2006.  Moreover, nobody could visit the BlockShopper web site and think that it is sponsored by or affiliated with Jones Day, even if they follow the links from BlockShopper’s mention of Jones Day associates to Jones Day’s own web site.  That is what web sites do – they link to other web sites (that’s what makes it a “World Wide Web”).

Boy, Jones Day is sure dumb, huh?

Not even a little.  Here’s the part where we stop laughing.  As Paul explains:

Regrettably, the trial judge himself reportedly played into this strategy at the hearing on the temporary restraining order.  Judge Darrah reportedly tried to encourage the defendants to give up their rights by saying “Do you know, young man, how much money it’s going to cost you to defend yourselves against Jones Day?”  Not surprisingly after the judge announced what side he was on, BlockShopper stipulated to a TRO barring any links to Jones Day’s web site or mentions of Jones Day on BlockShopper’s web site.

Yes, we said Jones Day knew what it was doing.

Depressing?  Very.

UPDATE:  Cause for hope.  Neither the story, nor the opportunity for a substantive ruling, is going away.

MORE:  Public Citizen’s brief.

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Author:Ron Coleman

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One Response to “A Jones for masochism”

  1. September 16, 2008 at 10:51 am #

    There is already a term of art for the one you made up. You are really talking about a trademark version of the Streisand effect.

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