Monster Cable loves to sue companies that use “Monster” in their names, even if they don’t sell cables and even if they’ve been around as long as Monster Cable has. Jones Day is a law firm that doesn’t want anyone else to use standard, everyday formatting for links in news stories about its staff, and it succeeded in forcing a small start-up to cave in to its demands.
Here’s Jones Day’s claim in a nutshell:
The first link below is trademark infringement, says Jones Day, because it confuses people by implying that the lawyer in question is affiliated with (in this example) Consumerist.com. The second link is only acceptable because it visibly displays the full url as the link.
So, how did a law firm ever get such an absurd claim far enough to force a settlement? They had a judge who has apparently spent the last 15 years avoiding the Internet, and who therefore doesn’t understand that the first example has been so common for so long that only someone who has never used the Internet (ahem) could possibly be expected to misunderstand the connection. He refused to dismiss the case, and rejected an amicus brief from digital rights groups on behalf of the start-up. The smaller company couldn’t afford an expensive court case and saw the writing on the wall, so they settled. Now they format their links the way Jones Day demands.
Slate, who covered the story last week, writes,
Trademark infringement is supposed to turn on consumer confusion. For instance, if you set up a roadside coffee stand, sell instant coffee, and market yourself as a Starbucks outpost, you’re probably infringing on Starbucks’ trademark by tricking people into thinking that you’re the company.
The idea that readers of a real estate news site would somehow be confused by links to Jones Day, on the other hand, shouldn’t have passed the straight-face test. One legal blogger proposed that the attorneys who brought the suit take ethics classes. Paul Alan Levy of Public Citizen described the lawsuit as a “new entry in the contest for ‘grossest abuse of trademark law to suppress speech the plaintiff doesn’t like.’”
What makes this case particularly nasty is that a large company successfully forced its will on another company based solely on a specious claim of trademark infringement. The next step for an ambitious company, of course, is to demand further control over how a site links to its content. After all, if you can get a judge who doesn’t seem to understand the concept of hyperlinking, who knows what you can get away with under the guise of trademark infringement.