That special something that says “infringement”

Jenzabar logoPaul Alan Levy sends along this heartwarming news about the Jenzabar case:

In a ruling this week, a Massachusetts trial judge upheld the free speech rights of a documentary filmmaking company against an effort by a Massachusetts software company to use trademark litigation to punish the filmmakers for the portrayal of one of the student leaders in the Tiananmen square protests. . . .

Sidestepping the fact that neither Google nor other search engines rely on keyword meta tags,  Massachusetts Superior Court Judge John Cratsley has granted summary judgment on the ground that there was no evidence supporting the claim that any reasonable Internet user might be confused about whether Jenzabar was the sponsor of Long Bow’s web site.  The court squarely rejected Jenzabar’s claim based on initial interest confusion, noting that a Google search for “Jenzabar” would turn up multiple results for Jenzabar’s own web pages that users interested in Jenzabar’s own web site could follow.  In the event an Internet user clicked through into Long Bow’s critical web pages, and did not want to be there, she could easily go back to the search list and find a different web page about Jenzabar.

Well, I’ve always liked LIKELIHOOD OF CONFUSION, and I like it even better when judges avoid getting all excited about Internet things and remember that without those magic words, there’s no trademark infringement.  Period.

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Author:Ron Coleman

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2 Responses to “That special something that says “infringement””

  1. December 15, 2010 at 11:49 am #

    Soap Box: I do not believe that the concept of initial interest confusion has any place in the law. First it degrades the intelligence of the “average consumer” by assuming that they cannot simply correct their error. Second, it seems built on the presumption that the average consumer was in fact looking for a particular site instead of merely searching for something.

    I think this judge stated it succinctly: “In the event an Internet user clicked through into Long Bow’s critical web pages, and did not want to be there, she could easily go back to the search list and find a different web page about Jenzabar.”

    It is a shame that this case will most likely not get traction in the judicial branch given its obvious tm bully aspect.

    PRK

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