by Paul Alan Levy
A few weeks ago, I commented on the efforts of mega law firm Jones Day to abuse trademark law to suppress articles it didn’t like on a real estate transactions web site, BlockShopper.com. Jones Day claims that linking to its web site without permission infringes and dilutes its trademark. Along with EFF and other public interest groups, we also filed a brief as amici curiae explaining why a case like this should have to meet a higher pleading standard, and why allowing cases like this to proceed threatens the free speech rights of the general public.
Earlier this week, the trial judge denied the motion to dismiss on the ground that the complaint contains the right formula of words to plead likelihood of confusion and dilution, without addressing the broader concerns that we raised. Paradoxically, the judge declined to accept our amicus brief (which Jones Day had opposed), largely on the ground that, supposedly, it did not say anything that the defendants did not say.
The opinion is worth reading as much for what it doesn’t say as for what it does. The judge ignores the larger issues and gives no guidance to the parties, not to speak of the rest of the world, about what proofs will suffice to create liability or confer adequate defenses. Of course, it is always up to a judge how much to say to explain his decisions, but this thirteen-page decision is quite remarkable for how little it says.
So the good news is that the issues we raised remain to be considered in the case (we plan to make further amicus submissions when we conclude that the parties’ argument insufficiently address larger concerns). The bad news is that the chilling effect remains. Happily, Blockshopper.com seems to be willing to spend on its own defense, but we must worry about the chilling effect of a decision that says, in effect, anyone who doesn’t like your speech can make you spend similarly to defend an abusive trademark claim, so long as they craft a complaint with general language.