Trademark infringement claims, especially based on Internet use — where no real damage need ever be proved, or even pleaded, to maintain an action — remain the handmaidens of litigants with deep pockets and think skins utilizing the courts to silence critics. Paul Levy reports:
Jenzabar, a company that makes software systems for colleges and universities, has joined the trademark abusers’ hall of shame by relentlessly pursuing trademark claims against the makers of a documentary film about the student protests at Tiananmen Square. Jenzabar objects to the fact that, on the handful of pages on a web site about the film that discusses Jenzabar, the name “Jenzabar” appears in the keyword meta tags.
The trademark claims are based on the fact that a Google search for “Jenzabar” brings up the main Jenzabar-related page on the web site about the film in the first ten search results. But these claims are preposterous, for many reasons. Not only has Google announced that it stopped supporting keyword meta tags in its search algorithm “many years ago,” (Yahoo! has also dropped keywords) but even if meta tags still mattered, their use would be protected as truthful speech that accurately describes the content of those web pages. Moreover, trademarks are “infringed” only if users are confused about the source of a product or service, and no reasonable Internet user would be confused about whether Jenzabar is the sponsor of the web page. Jenzabar also relies on the questionable theory of “initial interest confusion”; but as Public Citizen’s brief explains, that doctrine has no application here and in any event runs afoul of the First Amendment. [Yeah, Paul! Tell it! — RDC]
Because the trademark claims are so tenuous, it is hard not to assume that Jenzabar’s real agenda lies elsewhere.
As Paul goes on to explain, it’s not even hard to demonstrate where it does lie. Hint: What exactly is the purported (I wouldn’t know first hand) “root of all evil,” again? Hmm… maybe I’ll look it up in my little red book…