• by Wendy Davis  @wendyndavis, September 16, 2008

In a case that has digital rights advocates fuming, the law firm Jones Day is suing a real estate news site for posting publicly available information about two lawyers' recent home purchases.

Jones Day alleges that the site, BlockShopper.com, violated trademark law by mentioning the law firm's name in stories about condos purchased by lawyers Dan Malone Jr. and Jacob Tiedt. Jones Day, one of the country's largest law firms, also alleges that BlockShopper.com violated trademark law by linking to the firm's site.

"Use of the Jones Day marks, the link to the Jones Day web site and the use of proprietary information from the Jones Day web site creates the false impression that is affiliated with and/or approves, sponsors or endorses the business conducted by defendants," the law firm alleged in a lawsuit filed in federal court in the northern district of Illinois.

The law firm did not return calls Monday seeking comment.

But some industry observers, as well as digital rights groups like Public Citizen and the Electronic Frontier Foundation, say the 2,200-attorney mega-firm has no grounds to sue.

"There's zero merit to the case--not even a smidgen," said Eric Goldman, director of the High Tech Law Institute at Santa Clara University.

"You can talk about Jones Day all you want on the Web," he said. "It's not trademark infringement. It's socially beneficial communication that is simply unregulated."

Corynne McSherry, a lawyer with the Electronic Frontier Foundation, adds that it is unlikely that Jones Day can prove that online visitors were confused into thinking that BlockShopper was affiliated with Jones Day, which would be a key element of a trademark infringement claim.

"I can't imagine a world in which a consumer could possibly be confused--could possibly think that Jones Day is endorsing a real estate news site," McSherry said.

The case stems from posts on BlockShopper.com about two Jones Day lawyers who purchased condos in Chicago. The two-year-old site, operated and written by journalists, draws on public records to write articles about real estate in four major markets--Chicago, South Florida, St. Louis and Nevada. The site also distributes its stories through the South Florida Sun-Sentinel via a deal with the Tribune company.

Jones Day objected to the articles, and in a lawsuit quietly filed last month, demanded that BlockShopper remove them. The site agreed to temporarily take down the articles while the company's lawyer prepared a motion to dismiss the case, said BlockShopper co-founder Brian Timpone.

He added that after a news account of the lawsuit began circulating widely late last week, digital rights groups including Public Citizen and the Electronic Frontier Foundation reached out to him and offered their assistance. Both groups say they intend to file friend-of-the-court briefs asking for the case to be dismissed.

Paul Alan Levy, a lawyer with Public Citizen, described the case in a blog post as "a new entry in the contest for 'grossest abuse of trademark law to suppress speech the plaintiff doesn't like.'"

Levy also told Online Media Daily that Jones Day's allegation that BlockShopper.com violated trademark law by linking to the firm's site also appears meritless. "Nobody thinks that just because you link to somebody, you have their permission," he said. Levy added that if online publishers needed other sites' permission to link to them, the Web as we know it would not exist.

A similar issue came up earlier this summer in a lawsuit filed by Sheboygan, Wisc. blogger Jennifer Reisinger. She sued the mayor and other city officials after she received a letter demanding that she remove a link to the local police department from her site. That case is currently pending in federal district court in Milwaukee.

Public Citizen has represented other defendants in cases where entities have attempted to use trademark law to shape content on other sites. Earlier this year, Levy successfully represented Wal-Mart critic Charles Smith, who was sued for trademark infringement for running sites with names like "walocaust.com" and "walqaeda.com."