Commentary

Absurd Links Lawsuit Could Unravel Web

The law firm Jones Day is continuing to burden the court system with a trademark infringement lawsuit that should have been laughed out of court the day it was filed.

Yet, as ill-conceived as the case is, if the judge presiding over the lawsuit lets it go forward, that decision could affect every Web site that's ever linked to any other site. In other words, the entire Internet.

The dispute began when the start-up real estate news site BlockShopper.com reported about home purchases by two Jones Day associates. The information is a matter of public record, but the lawyers involved apparently hoped it would remain private.

The firm's idea of a solution was to send a cease-and-desist letter to BlockShopper accusing it of infringing the "Jones Day" name by mentioning it in articles about the purchases. The 2,300-attorney firm also objected to BlockShopper's linking to the Jones Day site, claiming that the link, too, violated the firm's intellectual property.

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When BlockShopper declined to take down the articles or its links, Jones Day quietly filed a trademark infringement suit.

It took a few weeks for the blogosphere to learn of the case, but by last month lawyers from Public Citizen, the Electronic Frontier Foundation and other digital rights groups got involved, filing a friend-of-the-court brief spelling out why the case should be dismissed and the consequences to the Web of letting it go forward. Among other potential repercussions: If Jones Day's argument is accepted, and Web sites violate trademark law by linking to other sites without their permission, the Internet would collapse.

BlockShopper and the groups also make the obvious argument that mentioning a company's name in a news story isn't trademark infringement.

This argument is so plain that observers aren't discussing whether Jones Day is correct on the law, but about whether the firm will suffer consequences as a result of this lawsuit.

Marc Randazza, an adjunct professor of trademark law at Barry University School of Law, blogged that the lawyers who signed the complaint "should be forced to attend remedial ethics counseling for affixing their names to this frivolous action."

If there are any non-Jones Day lawyers out there who believe the firm has the law on its side here, they've kept their opinions to themselves.

Yet, remarkably, the firm is pressing forward. The most recent development is that Jones Day filed a motion late last week saying that the case should go forward to trial. Among other points, Jones Day argues that BlockShopper's use of the firm's name is done for a commercial advantage on the theory that BlockShopper -- like virtually every news publication in the country -- accepts ads.

Here's one poorly reasoned passage: "Defendants link to the Jones Day web site (which prominently displays the Jones Day Marks) to create a false impression that Jones Day supports, approves, or is in some way affiliated with Defendants' business practices," the firm writes. "The point of this, of course, is to bolster the content of Defendants' web site, and therefore derive more advertising revenue."

How one publisher's link to other sites creates the impression of an affiliation is a mystery. Also perplexing: why the firm believes the so-called "unauthorized link" will increase BlockShopper's ad revenue.

Fortunately for news organizations, that question is irrelevant. Courts have long recognized that ad-supported news products are still editorial publications and can write about any companies they wish.

With each new filing, Jones Day digs itself in deeper, as it continues to insist that it has a legitimate claim worthy of a trial. Jones Day might think it can bully BlockShopper into settling the case rather than spend what could be hundreds of thousands of dollars defending itself.

Hopefully the judge won't let that happen.

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