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.