Jenzabar Continues To Try To Censor Criticism Via Trademark Bullying

from the not-again dept

Some people continue to insist that intellectual property and censorship are two totally separate issues, but that’s ridiculous. Yet another example is in the ongoing case concerning software company Jenzabar, which we’ve covered before. If you’re just picking this up now, one of Jenzabar’s founders, Chai Ling, many years ago, was one of the student leaders of the Tiananmen Square uprising — a point that the company regularly used in its PR efforts. A documentary film from Long Bow Productions showed Ling making some comments years ago about how she hoped the uprising would lead to bloodshed, in order to incentivize a wider uprising. Most people might write off such comments as extreme comments in the heat of the moment from a young, immature activist, and let it go. If Ling had just said that she regretted the comments, the whole thing would have probably blown over.

Instead, Ling appears to have decided to use trademark law to try to silence the filmmakers. They first tried a defamation lawsuit, and that didn’t work (seeing as Ling apparently actually said what’s shown in the film), and everything else was nonactionable opinion statements. So then they shifted to a clearly bogus trademark claim. The filmmakers had put up a website about the film, including one page about Jenzabar. So the company sued the filmmakers, claiming trademark infringement. This is pretty absurd of course. There’s no trademark issue here. No likelihood of confusion. Even though Ling/Jenzabar claim that the page in question presents “lies,” the defamation lawsuit didn’t work — this is entirely about trademark law. It seems pretty clear that Ling (and others at Jenzabar) just don’t like that this info is getting out, and are trying to use trademark law to stop this form of speech.

The court sided with the producers, granting summary judgment and tossing out the case, but Jenzabar is appealing the ruling. Part of the original argument for the trademark claim was that Long Bow used the company’s name in its metatags. This is silly for a variety of reasons. First, the page actually does talk about Jenzabar. Second putting a trademarked company name in metatags isn’t a violation of trademark law. Third, and most importantly, metatags are almost entirely ignored by search engines — so the claim that this impacted Google’s search results seems misguided. Of course, somehow Jenzabar found an “expert witness” to insist that Google does use metatags (in combination with title tags) in determining rankings, and tried to dismiss claims from actual Google employees to the contrary as hearsay.

Now, in the appeal, Jenzabar is apparently arguing that because the Google snippet that shows with the page mentions that Jenzabar tried to censor the site, it’s proof of infringement. As Paul Levy notes in talking about the case, “Will its lawyer be able to argue that with a straight face?” As is noted in Levy’s filing (on behalf of Long Bow), the fact that Long Bow has made it even clearer that Jenzabar has no association with the page — by publicly stating that the company tried to censor the page — actually works against Jenzabar’s trademark claim. It’s even more evidence that there is unlikely to be any confusion by users finding Long Bow’s page. Any moron in a hurry can tell that the page is not endorsed by Jenzabar. But, rather than recognizing how this hurts its own case, Jenzabar is claiming that this new tidbit of info on the page is somehow new evidence of infringement.

In theory, this new listing should have met Jenzabar’s purported concern that the original search listing could confuse potential customers using Jenzabar’s name as a search term. But Jenzabar argued below, and apparently still contends on appeal, that this is an “infringing” use of its marks…. Nothing could show more clearly that this case is about suppressing public access to truthful criticism, not protecting against deception of consumers.

Either way, all the facts of the case seem to suggest that this lawsuit (and further appeal) are simply about trying to silence the filmmakers by burdening them with an expensive and distracting lawsuit. That seems like a pretty clear abuse of the purpose and meaning of trademark law.

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Companies: jenzabar

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Comments on “Jenzabar Continues To Try To Censor Criticism Via Trademark Bullying”

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Anonymous Coward says:

Vexatious Litigant

Jenzabar is clearly engaged in vexatious litigation for the purpose of imposing censorship. Is there not some sanction that the court could impose on the plaintiff? Is there not some offence on the books designed to prevent people wilfully being a vexatious litigant? What about barratry? Or maybe champerty? Do defendants simply have to sit back and take it, while it costs them time and money?

Call me Al says:

Re: Vexatious Litigant

This was my thought exactly, or nearly exactly since I needed to get a dictionary to look up barratry and champerty.

bar?ra?try – the offense of frequently exciting and stirring up lawsuits and quarrels.

cham?per?ty – a sharing in the proceeds of litigation by one who agrees with either the plaintiff or defendant to help promote it or carry it on.

This is one of the problems of our time. That companies which have sufficient funds to invest in wrapping up the competition or critic or documenter in spurious legal issues are able to do so with impunity. It clearly needs to be addressed.

Prisoner 201 says:

This is a pretty obvious case.

(a) Infringement = Theft
(b) Infringement = Lost Sale
From (a) and (b) we get
(c) Lost Sale = Theft
We also have
(d) Bad Press = Lost Sale
From which follows
(e) Bad Press = Theft

Clearly badmouthing a company is Theft, and since it is theft from a corporation (and as we all know corporations are people, just worth more than other kinds of people) the punishment should be a few million dollars and a hefty prison term.

Furthermore, since they are obviously guilty of a crime against a corporation, there is no need for due process or any form of bureaucracy – their assets and website should be seized immediately to put a stop to this ongoing theft-rape.

If by some extremely unlikely freak occurence they are innocent, they can get their assets back in a year or so if they work tirelessly navigating meaningless beurocratic hoops.

Case closed.

saulgoode (profile) says:

If Ling had just said that she regretted the comments, the whole thing would have probably blown over.

Alternately, she could have stood by her comments. It seems to have been expressed in a vein similar to Thomas Jefferson’s once stating “What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure.

AJBarnes says:

In a hurry?

I’m surprised that it is politically correct for a judge to use the word ‘moron’ as in ‘moron in a hurry’ as a test of comprehensibiltity. It really casts a negative light on true morons who did not ask for that condition.

In the spirit of the Great Political Correctness, I would propose “Lawyer in a hurry”, or “Politician in a hurry” as a replacemtn phrase. There could be no complaints against using those classes of people because I think EVERYONE gets that if they can understand it, then ANYONE can…

Machin Shin (profile) says:

Re: In a hurry?

Well I think that is just the point though. They are setting the bar HIGHER than lawyer or politician. Both lawyers or politicians could easily get confused by these pages using trademarks. So using them as the standard is too low. Everything would be infringing.

As such they went with “moron”. This is a higher level and as such fewer sites would be found infringing. It is much harder to confuse a moron than a lawyer or politician after all.

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