by Paul Alan Levy
In a previous post, I discussed abusive trademark claims put forward by Jones Day seeking to suppress speech on the BlockShopper web site about two of its associates that it did not like. Defendants’ motion to dismiss is due to be filed today, and I teamed up with Corynne McSherry at the Electronic Frontier Foundation to write an amicus brief, filed today , that explains many of the reasons why Jones Day’s law suit cannot be sustained. Public Knowledge and Citizen Media Law Project are also on the brief.
We argue that there is no infringement claim because the exhibits contradict the allegations of likelihood of confusion (indeed, the notion that anyone would be confused is preposterous); that when fundamental First Amendment rights are at stake the plaintiff must do more than make conclusory allegations of likelihood of confusion; and that BlockShopper made nominative fair use. We argue that there is no dilution claim because Jones Day is not a famous mark now that the cause of action for niche fame has been eliminated and the complaint does not properly allege famousness, and that all three statutory exemptions from dilution – noncommercial use, news reporting, and fair use – apply in this case.