by Paul Alan Levy
Twelve days ago, I posted comments here about a Jones Day lawsuit claiming that its trademark is infringed and diluted by mention of its name in headlines of articles on the BlockShopper web site, www.blockshopper.com, and by links to the Jones Day web site. Last week, we joined with EFF and other groups to file an amicus brief discussing Jones Day’s claims in light of both trademark law and the First Amendment, and posted word of that brief here.
There are, apparently, some arguments in that brief that Jones Day is desperate to keep away from the judge – or, at least, to avoid having to answer – because it has taken the remarkable step of filing a five-page brief opposing the motion for leave to file the brief. It argues that the brief should not be accepted on the one hand because it duplicates arguments made by BlockShopper, and on the other because it makes an argument that BlockShopper does not make, and because the amicus brief is “partisan” in that it takes one side in the case instead of being neutral. At bottom, Jones Day’s view rests on the notion that amicus briefs should rarely be allowed, relying in turn on a handful of opinions from Judge Richard Posner who feels that amicus briefs rarely say anything that he doesn’t already know. Both Jones Day’s opposition and our response, as well as the original amicus brief, can be found here.
There is one statement in Jones Day’s opposition brief that requires a correction of a statement that I made in my first blog post. I expressed concern about a statement by Judge Darrah, leaning on the defendants to give up their free speech rights as follows: “Do you know, young man, how much money it’s going to cost you to defend yourselves against Jones Day?” I then said that it was understandable that, after learning the judge’s position, BlockShopper had stipulated to a TRO lasting six weeks. Jones Day claims that this statement was not made until a court session on August 26, but the TRO was stipulated on August 19, and hence defendants’ decision to stipulate the temporary TRO could not have been influenced by what the judge said. Following up with my original source, I have satisfied myself that Jones Day’s claim about the date is correct, and hence both my statement that it was made at the initial TRO hearing, and my causal statement, were in error.
There remains one oddity – Jones Day never explains why this fact is relevant to the motion for leave to file as amicus curiae. Is the firm trying to make the judge mad at me for criticizing him, and hence impel him to deny the motion for leave to file? Or is it just that Jones Day wants to respond to the blog post publicly but does not want to depart from its position of refusing to comment, so instead it puts a legally irrelevant point in its court filing?