• by Wendy Davis  @wendyndavis, March 12, 2012

A federal judge has shot down a request by the campaign of Ron Paul to unmask NHLiberty4Paul, a Twitter and YouTube user who earlier this year posted a clip criticizing former candidate Jon Huntsman.

The clip, titled “Jon Huntsman's values,” intersperses questions like “Weak on China? Wonder Why?” and “What's he hiding?” with video footage of the ex-U.S. Ambassador to China candidate speaking Chinese. The ad ends with a screen asking people to support presidential hopeful Ron Paul.

Paul immediately said he wasn't responsible for the clip; his campaign also filed a federal lawsuit alleging that NHLiberty4Paul infringed Paul's trademark, engaged in false advertising and defamed Paul by portraying him as “unscrupulous, xenophobic and underhanded.” Paul's campaign sought an expedited court order unmasking NHLiberty4Paul.

U.S. Magistrate Judge Maria-Elena James in the Northern District of California ruled late last week that Paul's camp didn't allege enough facts to warrant proceeding with the claims that the clip violated federal trademark infringement and false advertising law. Without those claims, the Paul camp can't continue with the libel case in federal court, but the campaign can theoretically still pursue that claim in state court.

A trademark holder must show that his name was used in commerce to proceed on claims stemming from the federal Lanham Act -- which governs trademark infringement and false advertising. The Paul camp said that his trademark was used in commerce, given that Twitter and YouTube are commercial sites, but James rejected that theory.

"While it is true that the Web sites for both Twitter and YouTube may have commercial purposes, it is defendants’ conduct that is at issue here. And it is this conduct that in some way must be connected to the sale of goods and services for the Lanham Act to apply."

James also rejected the argument that the clip potentially affected fundraising and, therefore, used Paul's name in commerce. She based that ruling on the fact that the clip doesn't ask viewers for campaign contributions. "The complaint does not contain any allegations that defendants released the video to compete with plaintiff," she wrote. 

The ruling marked the second time that James rejected a request to identify NHLiberty4Paul. In January, she ruled that the campaign hadn't complied with all of the procedural requirements for unmasking a Web user on an expedited basis.

The ruling issued last week was without prejudice, meaning that Paul's camp can rewrite its complaint and try again to show that it's entitled to proceed on federal trademark claims.

A lawyer for Paul's campaign declined to comment on its next move other than to say the organization is still "exploring our options."

Paul Alan Levy, a lawyer with the consumer advocacy group Public Citizen, described James' decision as "a narrow but still important victory for free speech." Last month Public Citizen, along with the ACLU, Digital Media Law Project and Electronic Frontier Foundation, filed a friend-of-the-court brief last month arguing that the Paul campaign shouldn't be able to unmask the user.