Tuesday, September 16, 2008

Jones Day (Ab)Using Trademark Infringement Lawsuit To Stop Website From Posting Publicly Available Information

I admit that I missed this big trademark story when it was publicized last week.

In short, BlockShopper is a website which collects publicly available information on real estate transactions in Chicago, South Florida, Las Vegas, and St. Louis. For certain transactions, the website then goes one step further by linking that information with other publicly available information (e.g., publicly posted law firm bios) to write up news articles about such real estate transactions. When BlockShopper reported on expensive condos purchased by two law firm associates (Dan Malone and Jacob Tiedt), BlockShopper identified the two by their employment with “Jones Day” and linked their names to Jones Day’s web site. For that, Jones Day is now claiming trademark infringement. MediaPost ran an article yesterday about the dispute.

Several other bloggers have already eloquently posted comments and criticism on the lawsuit, so I will respectfully defer to them:

  • Paul Levy’s blog post on Consumer Law and Policy Blog;
  • Prof. Marc Randazza’s blog post; and
  • Citizen Media Law Project write-up.
Citizen Media Law Project also has a page devoted to the filings in the lawsuit. The Amended Complaint can be downloaded here.

We’ve all heard the old law adage “A lawyer who represents himself has a fool for a client.” Well, Jones Day has proven the adage once again. One has to wonder what was going through the heads of the lawyers behind the complaint, which the public should be aware was signed by Jones Day lawyers, Paul W. Schroeder, Irene S. Fiorentinos, Meredith M. Wilkes, Robert P. Ducatman, and James W. Walworth Jr (Comment: Curious about why the complaint had so many attorneys named in it -- would you want your name associated with such a pleading?). As Prof. Randazza notes, Jones Day would have had a much less frivolous argument had it pursued a copyright infringement case rather than trademark infringement (for BlockShopper’s use of Jones Day’s pictures of its two associates). But Jones Day – at the foolish direction of its client – chose instead to assert trademark infringement.

If BlockShopper can get this case dismissed for failure to state a claim upon which relief can be granted, I hope that they pursue Rule 11 sanctions against the attorneys for submitting pleadings that contain frivolous arguments or arguments that have no evidentiary support. Unfortunately, such sanctions may be difficult to obtain even in light of the ridiculousness of this complaint given that a big law firm like Jones Day has enough resources to come up with non-frivolous arguments that its frivolous arguments are not frivolous and that its frivolous arguments do have evidentiary support. At a minimum (per Prof. Randazza’s suggestion), the attorneys should be required to attend remedial ethics counseling.

I would also add that if those two associates (or anybody) truly did not want the world to know about their real estate transactions, they had the option of not purchasing real estate at all or, alternatively, not purchasing real estate in their own name (i.e., purchase a house through a private trust or business entity that has no association to their own name). But no one can get around the fact that public real estate records are just that – public. Granted, the Internet and modern technology have made it a lot easier to gather, organize, and publicize it to the world – but that doesn’t change the fact that the information is public.

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