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.
Because the trademark claims are so tenuous, it is hard not to assume that Jenzabar’s real agenda lies elsewhere.
Jenzabar’s founder Ling Chai is distressed about the way she is portrayed in the film, which quotes her as expressing the hope for bloodshed to show the people of China how bad the regime is. Chai has since been quoted as maintaining that her words were either mistranslated or taken out of context.
However, she sued for defamation only over the web site's having quoted newspaper articles about previous litigation involving the Jenzabar company. After those defamation claims were dismissed, her company used the trademark claim to keep the lawsuit alive in the apparent hope of bleeding the documentarists dry. Reading through the deposition transcripts, which can be found here, it is quickly apparent that Jenzabar is using its trademark claims to oppress the authors of speech that its owners deplore. And a Jenzabar publicist was quoted in the Boston Globe as bragging that the trademark suit represents Chai’s use of the software company’s “resources to fight back” against her critics.
The great irony here is that Chai, who first made her name as a voice for freedom, is now using the money she has made through her software company to attack her critics and keep them tied down in court. One may well wonder whether she retains the free speech values that her customers in the world of higher education demand. One blogger, in fact, suggested that potential Jenzabar customers should take this lawsuit into account in deciding whether to buy its products.