Law Firm 'Jones Day' Usurps Monster Cable For Stupidest Trademark Lawsuit Ever
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.
Patrick F. McCartan
http://www.jonesday.com/pmccartan/
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.
"Linked Out" [Slate] (Thanks to Sandra!)
(Photo: Brymo)
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Comments:
How can this possibly be a final ruling? There's got to be some way around this, you can not sue over how hyperlink text spells out and displays a name. I get that the judge has been living under a rock, but some other judge HAS to see this and think OMGWTFROFL
This would literally allow crazy people to sue the internet. Oh, the hilarity that will ensue.
And by hilarity, i mean long drawn out pointless legal battles.
The company settled, so there's no ruling actually.
Being that they settled, there is no ruling, so it cannot be used as precedent. Of course, IANAL... Any one who IS a lawyer, care to comment on this?
What happens when I show the full URL, but link it to something else?
[a href="http://www.google.com/"][www.jonesday.com]]
We don't understand the web! We're scared! We SUE!
Jones Day - Full endorser and sponsor of Consumerist.com
Why hasn't monster.com sued Monster Cables?
Monster Cables (which is a rip off in the first place) has the ability to bully companies around. Since they are older, probably have a nice war chest, and keep on making people think " their cables are worth it", this is not the last time we will hear from them.
Plus the only judge who could get such a case is one who cannot spell internet. It's a very cheap win, for a very cheap company.
All hail the Monster "Gold" cables!
Before someone starts lawyer-bashing, please know that there are many trademark attorneys *ahem* with good sense, and that find Jones Day's suit to be unethical at best. The idea that there was ever a danger of confusion as to source in this situation is laughable. The firm -- and especially the lawyers of record who signed the complaint -- should be ashamed. Jones Day deserves every bit of bad press coming to it.
@Dooley: You are correct. The case settled. No final ruling, no legal precedent as to infringement. Though it's surely conceptual "precedent" for douchebag law firms and other large companies that wish to use their clout and vast resources to screw over small companies that, you know, use the Internet. In this regard, some will surely cite the judge's failure to dismiss the suit in the first place. Whether or not this is binding or persuasive precedent will depend on the jurisdiction and local rules, I guess.
Shakespeare was right about lawyers.
it's gotten pretty common for sites to identify when you get a link to another site. you guys do it with brackets.
that kind of linking, in and of itself, isn't a big deal. but i could see a case for that plus some actions being considered infringement.
on a side note, it really pisses me off when blogs over link to their own tags in a story. i know it's all automated and based on keywords. but sometimes i feel like i'm playing and old SCUMM point and click game trying to find the link to the actual story.
@steegness: What happens if you link to the right URL, but instead put something in there like "big worthless jerks" and then posted it all over the net? Would Google start associating the two?
This is simple HTML...
This is a basic function of website design.
I am more amazed that angry that this was allowed to happen.
The court system needs an enema...
Years ago I owned a small computer store that was named byte shack. I received a certified letter from radio shack that was a threat. They claimed that I was diluting their trademark. I just ignored them. Two weeks later I get an email from a disgruntled little old lady that wanted to complain about my store in Denver. I also ignored that. They never called again. I think the email was an early attempt at a phishing scam. Five years in business and I never had a ligitimate claim. I kept the letter framed for my customers to read and laugh at.
If word of this gets out it could give lawyers a bad name!
Instead of linking from the words "Jones Day" to Jones Day's own web site, like this, if, for example, we were talking about Jones Day's lead counsel Paul W. Schroeder, perhaps we should link instead to a site that shows our opinion of lawyers like Paul W. Shroeder of Jones Day who brought this lawsuit.
Would that make them feel better?
And will they sue me (and Consumerist) for linking the first way?
This is so ridiculous. Why do they let a judge that has no experience with the internet make a ruling on a case involving the internet? That would be like getting a figure skating judge to ref a basketball game, or in a more direct example, a traffic court judge taking a superior court case. If they have no experience at all in something they should A) remove themselves or B) be removed by force.
@Dooley: Even if there was a ruling, settlement can lead to the vacatur of the decision under certain circumstances.
Just wait until Jones Day or some other large douchebag law firm picks on someone their own size and gets before a judge (and the judge's law clerks) who actually use the Interwebatubes.
@putch:
I think the point of putting the hosting url of a link is less to prevent trademark infringement, and more to prevent people from making hyperlinks that appear to be to, say, a legitimate site, but instead point to something potentially offensive, like goatsex or tubgirl.
@Plates:
yep: "the more I think about it, oh Billy was right...let's kill all the lawyers and kill them tonight"
The Eagles Get Over It
@RogueSophist: who's going to initiate the disbarment procedures? Hopefully some of these alleged attorneys with good sense.
@ahoy-captain: It's not precedent - it means nothing except that some companies will see it as something that *can* be done - what BlockShopper did was ask the judge to grant them summary judgment.
Summary judgment is very difficult to get - it means that your side wins, even if all the evidence in the case is interpreted in the most favorable manner towards your opponent.
This reminds me of the store Burlington Coat Factory, who to this day (because of a lawsuit) has to put in small print "Not affiliated with Burlington Industries" under their name on all ads.
95% of consumers have no idea who "Burlington Industries" is nor would ever confuse the two. The judge that make that ruling was smoking something.
If I were BCF I would just changed the damn name of the store than put up with having to do that nonsense for decades!
this article is currently the 37th link on google.
Ok... everytime I see a story like this I think to myself "Everyone should remove their links to their site, Google included". If they have no links then they don't exist, hard to run a business with no hits in search engines or links from anyone else (heck Google alone could kill this type of nonsense by making it a policy to remove them from search results and claim fear of lawsuits).
Appeal, chances are you will find a Judge with a little more sense. Then sue for court fee's, lawyer fee's and a little lost profit since you have spent your time dealing with this issue and not your business.
@PLATTWORX:
In that case Burlington Industries manufactures fabric, and Burlington Coat Factory sells clothes made out of fabric, I can see how that ruling came down...
@Eyebrows McGee: Right, I can count on my on one hand (five fingers in case you're wondering) how many times I've seen those awarded. J-D are a bunch of D-bags. Of course, they'll hide behind the same tired argument that all the other D-bags do, "we need to protect our brand or we lose rights."
Fine, keep your brand, but you just lost your reputation.
@cc82: Right, but perhaps it should be revisited as BCF now has the superior mark. Meaning more people associate the name Burlington with BCF and Burlington Industries could confuse people into thinking they're associated with BCF.
@PLATTWORX: Every time I hear Burlington Coat Factory I think of my 2nd grade social studies book that taught us about Burlington, North Carolina, for no reason that I can recall. Talk about brand dilution...
The Academy does this for the Oscars routinely: they search out and ask people who use the brand to change their wording and linking.
Read before you panic.
The judge's ignorance aside, there was no ruling. As the article very clearly states, the start-up decided to settle because they couldn't afford a lengthy lawsuit. Thus, there is no caselaw or precedent to worry about from this case.
That said, the judge in question doesn't belong behind a bench if he is going to remain so intentionally ignorant that attempts to educate him are thrown out, as was the case here.
Although this set no legal precedent, it does, create a chilling effect, by making it clear that, in that county anyway, one can make an extraordinarily outlandish claim that happens to be mildly technical in nature in order to force an issue. Apparently, with enough legal or political clout, that claim will force your target to either spend hundreds of thousands of dollars to defend it, or settle. I'm surprised that organizations like the EFF and ACLU didn't offer to step in and fight on this one.
@Eyebrows McGee:, @ARP: I wish I could be some sort of Rule 11 vigilante, traveling the U.S. and punishing the wicked.
@RogueSophist: I know, for real.
@ARP: I've seen two, one of which was super-egregious, the lawyer tried to argue that underage drinking was protected by the civil rights amendments and that these dumb-shit kids who got a plethora of chances were being discriminated against like Rosa Parks was discriminated against. It was pretty insane.
We definitely do not want this ruling established as a precedent.