by Paul Alan Levy
Jenzabar, a Boston-based educational software company run by the chairman of the Massachusetts Republican Party, continues in its efforts to abuse trademark law to punish the makers of a documentary film that shows one of the company's founders making brash statements as a student, hoping for a bloodbath that would spur a popular uprising in China, that she has since come to regret. Instead of suing over the accuracy of the film, Jenzabar complains about a page on the film-related web site from which, it fears, customers might learn what the filmmakers have republished from the Boston Globe about Jenzabar itself.
I blogged about the case several times a couple of years ago (for example, here and here), while the summary judgment motion was pending. Jenzabar’s claim was that by putting its name in the keyword meta tags and title tag of a page about Jenzabar, the documentarists were unfairly bringing Jenzabar’s prospective customers to a web page where they might read "lies about Jenzabar" and hence decide not to do business with it.
Although we made a number of technical trademark arguments about the lawsuit, the most troubling thing about the suit was that, in the end, what Jenzabar wanted to prevent was customer access to criticism, and trademark law is not supposed to prevent criticism. In the end, the Massachusetts Superior Court granted summary judgment dismissing the trademark claims, while postponing a decision on whether Jenzabar would have to reimburse Long Bow’s hundreds of thousands of dollars in attorney fees, pending a decision on Jenzabar’s appeal.
We filed our brief today in response to Jenzabar’s appeal, pointing out the many ways in which its lawsuit was flawed from the get-go. But one more oddity has been added to the case – after Jenzabar complained that the descriptive snippet that Google was including in the search results was what might deceive customers looking for information about Jenzabar, Long Bow added a description meta tag referring to Jenzabar’s effort to censor the site. Google's search result snippet now reads: “Jenzabar has tried to censor this web page because it carries critical information about the software company that Chai Ling started with her husband.” But Jenzabar still claims that because the search result appears in the first set of Google results, it is still an “infringing use” because its customers might be deceived. Will its lawyer be able to argue that with a straight face?
The expense of defending the lawsuit came close to putting the documentarists out of business. A very nice amicus brief from the Berkman Center's newly-renamed Digital Media Law Project points out the danger posed by subjecting expressive uses to the trademark laws, given how expensive it is to pay for hundreds of hours of legal work, not to speaking of hiring the expert witnesses and conduct the consumer surveys that have become the typical meat of a trademark case.