Jenzabar, the educational software company Paul Levy and I mentioned last month (and which Overlawyered picked up) in connection with its “trademark as censorship tool” litigation, is back at it again — and not a little clumsily, for all its cleverness. As Paul reports, the company’s lawyers are
now claiming that such blogging is illegal. According to Jenzabar, a blog post nominating Jenzabar for the “Trademark Abusers Hall of Shame” will “create controversy” and “cause prejudice to Jenzabar,” and any lawyer who engages in such blogging is in violation of Massachusetts court rules.
Jenzabar has sued the Long Bow Group for placing Jenzabar’s name in the keyword meta tags for a web page about Jenzabar, which, Jenzabar claims, has unfairly placed this web page among the top search results when Internet users do a search for “Jenzabar.” This placement, Jenzabar protests, allows university IT personnel who are trying to decide whether to buy Jenzabar’s software and services to learn adverse facts about Jenzabar which might, in turn, lead them to decide not to do business with Jenzabar.
Jenzabar is particularly exercised that my blog post cited a statement by Google back in September announcing that its search rankings have not employed keyword meta tags for many years. This information, Jenzabar insists, is not admissible in court because Matt Cutts’ statements on the subject on the Google’s blog for webmasters, which Google calls “Official News,” is not an “official statement by Google.” It appears to be Jenzabar’s position that blog posts about a lawsuit must comply with the rules of evidence.
Or something. In fact, Jenzabar’s argument is a tad cleverer than Paul (wearing his advocacy hat, after all) is letting on — and, as we will see, more than a tad dumber.
For one thing, Janzabar’s kvetch is incorporated into a submission urging the court to exercise its discretion not to permit Paul to appear in the case pro hace vice — so there is no tort claim nor, for that matter, is it necessarily the case that the First Amendment trumps any old thing or is involved hardly at all. When courts are given “discretion” to make decisions about case management, they are given a lot of leeway before they are considered to have “abused” that discretion.
The second clever thing is that Jenzabar is saying that the reason Paul should not be admitted in the case is that he’s been blogging about it, in violation of Massachusetts Rule of Professional Conduct 3.6, which prohibits extrajudicial statements, which are defined as, more or less, “inadmissible stuff.” In other words: Counselor, if you couldn’t get that into evidence, it shouldn’t go into the papers.
Most judges like rules such as these very much. Hence, the cleverness.
The not-so-clever, however, comes in two parts, too. First — and this is what Paul picked right up, naturally — the best they could do in terms of “inadmissible” was a fairly technical argument, and not necessarily a correct one, regarding what is actually an assertion so uncontroversial at this point that judges ought to (though seldom do) just take judicial notice of it already and move on in life: Namely, the following:
Metatags are ignored by search engines, or are so severely discounted as to put their use firmly in the category of de minimis non curat lex. (Of course, we all know that axiom’s not always applicable to trademark law, right? But bear with me.)
In fact, in the Trademark Religion, it is one of our cardinal beliefs that, just as trademark damages need never be proved in any coherent form, they are virtually never found by judges to be absent (I didn’t say never–ever! ;-)). Nor do juries care much about them either; so too God keeps web designers, widget-makers and SEO consultants slathering websites with metatags so lawyers and judges in trademark cases could perpetually demonstrate just how thick they can be about how the Intertubes work. And let us say, amen.
Now this one may be a dumb that Jenzabar is well aware of, and it’s merely the best its got, but so be it. I’m more interested in whether Paul tipped ju-u-u-u-ust up to the line in terms of blogging about a case he was trying to get in on and drew it there knowingly, or, mmm… just got a little lucky there. (I like that kind of luck!) But remember what I said about judges, and discretion, and management, and how much the transparency of the Internet and the independence of the blogging medium, utterly unaffected by Article III of the Constitution and its life-giving license to bumble, are their worst nightmare.
Paul’s side need not be wrong to lose this one: As he well knows, some judges would rather be hated once and loudly on the Internet for being preposterously wrong than be second-guessed on the Web during a case. Jenzabar has done a fine job, in that regard, of putting that bogeyman into the judicial noggin in question. It may work.
Oh, but the other not-so-clever piece is this: You live by the clever, and die by it, right Jenzabar? So you can, without drawing the ire of Rule 11, make a boo-hoo-hoo “he’s calling me names” argument in a legal motion because you’ve cleverly found a nice strong peg to hang it on: The judicial discretion inherent in a pro hac admission application. Yes, well, it’s a strong peg, Jenzabar. But it’s a narrow one indeed.
Because LIKELIHOOD OF CONFUSION® is not making such an application and is not otherwise bound by the RPC’s in Massachusetts from making extrajudicial comments in this case about whatever we can. Walter Olson, for his part, is a gentleman and hence but no lawyer at all. And, you know, we have friends, too.
Just… saying. For words can never hurt you, right?
UPDATED-ER: Jenzabar loses.