Nation's Largest Law Firm Still Sports Thinnest Skin, Sends Trademark C&D In Attempt To Bury Critical Speech
from the 2,500-lawyers-and-zero-common-sense dept
Back in 2008, Jones Day pressured a website called BlockShopper into pulling information it had posted to its website -- information it had gathered from public records. All BlockShopper did was post information on property purchases. When two members of Jones Day purchased property in the Chicago area, BlockShopper did what it always did: posted information on the purchasers and provided informational links about the purchasing party. These links led back to Jones Day and at that point, the legal firm sent out a cease-and-desist about its trademark somehow being "violated" by BlockShopper's "deep-linking."
As if this bullying wasn't enough, the judge presiding over the eventual lawsuit talked BlockShopper out of defending its posting of publicly-available information, apparently far more impressed by the size of Jones Day than the defendant was.
"Do you know, young man, how much money it's going to cost you to defend yourselves against Jones Day?"BlockShopper caved and pulled the info and links, and Jones Day went back to being just an incredibly large law firm.
Now, it's doing the same thing to a site posting critical (and parodic) content about one of Jones Day's former partners (Kevyn Orr), the current emergency financial manager of disintegrating metropolis, Detroit.
Jones Day, the United States' largest law firm, is threatening a parody website with litigation because of its use of the corporate logo deriding the firm.The letter singles out the phrase that offends Jones Day the most: the tagline "This economic coup d'etat brought to you by Jones Day." The letter tries to drag in Lanham Act violations to excuse its targeting of First Amendment-protected speech and its deliberate obtuseness about fair use. One would think a law firm with "2,500 lawyers" might be able to come up with a better legal strategy (like, not doing anything at all), but it's apparent the law firm prefers to use its bulk, rather than its mental prowess.
"I write on behalf of Jones Day, a law firm with over 2500 lawyers in offices on five continents, regarding your unauthorized use of Jones Day's service mark on the website www.kevynorr.com ..." begins the letter from firm partner Robert Ducatman to the anonymous blogger.
The letter even includes this bit of threatening language:
"Your conduct will be closely monitored."No firm points out that it has "2,500 lawyers" at its disposal unless it's in a threatening mood, and this particular sentence clinches it.
Jones Day may have been hoping for another nearly-uncontested "win," but its bullying has drawn the attention of the EFF, which has fired back a response (by Daniel K. Nazer) just as tersely worded.
Contrary to your suggestion, our client does not need "authorization" to use Jones Day's marks. It is well-settled that the First Amendment fully protects the use of trademarked terms and logos in non-commercial websites that criticize and comment upon corporations and products. Our client's site is a clear example such protected expression. You may disagree with our client's speech. But you have no right to silence it.Jones Day has had previous experience with the EFF. In its lawsuit against BlockShopper, it asked the judge to disallow amici briefs from Public Knowledge and the EFF, claiming the two entities were "biased." Once again, it's rather amazing that the United State's largest law firm is either unable (or unwilling) to recognize the fact that amicus briefs are inherently "biased." If they weren't, they'd be completely extraneous. It's the judges who need to remain unbiased, not the parties involved or the parties offering briefs on their respective behalfs.
You state that Jones Day and its over 2500 attorneys will "closely monitor" our client's conduct. We trust that this was not an attempt to bully and intimidate, but a promise that you will "monitor" the situation with close attention and fidelity to the law, including fair use and First Amendment protections…
We sincerely hope Jones Day Will have the good sense not to trouble a court of law with this matter. However, if you do intend to file suit, please be assured that our client is prepared to defend himself against these spurious claims.
In addition to the blatant bullying, Jones Day is further injuring its own reputation -- both by showing that being the "biggest" somehow still makes you the easiest to bruise and by drawing even more attention to the speech it's trying to bury.
[Lengthy sidenote: It is quite possible -- in fact, even probable -- that many of the 2,500 lawyers under Jones Day's roof would have seen this cease-and-desist as both stupid and not legally sound. Unfortunately, the company's reputation is far more subject to the whims of those who apparently lack this sort of clarity and vision. Maybe this kind of legal duncery becomes increasingly infectious as you rise through the ranks. Here's a quote from a Jones Day partner defending trademark bullying as nothing more than what one does to protect registered marks.
Susan Kayser, partner at law firm Jones Day, goes further. She says rights owners feel there is merely a perceived, not a real, problem of bullying.
“Under US law, trademark owners are obliged to enforce their rights or they lose them. They must bear the burden of policing any third-party use, and if they believe any use is close to theirs, they are obliged to take action or risk losing their trademark rights,” she says.Kayser, like many other spokespeople for trademark bullies, blames the public for perceiving the weight of 2,500 lawyers on one blogger's shoulders as "bullying." She also adheres to the all-too-common misperception that scorched earth policies are demanded if one is to keep its trademarks from being diluted, misused, etc. Nothing could be farther from the truth, as one judge memorably stated in a trademark bullying case:
“We start with that,” Kayser explains.
“The vast majority of trademark owners are doing what they’re required to do under the law. There are a few bullies, but they are in the minority. I don’t think it really happens that much.”
The owner of a mark is not required to constantly monitor every nook and cranny of the entire nation and to fire both barrels of his shotgun instantly upon spotting a possible infringer.Which is exactly what Jones Day appears to be doing. And in doing so, it's harming its own reputation... and that of the 2,500 lawyers in its employ, many of whom would have avoided a debacle like this if it were up to them. The question is, when do your company's stupid actions begin damaging your ability to make a living? Is it at the point when people gaze in awe at the statement "2,500 lawyers" and begin wondering a) if they're ever all in one room at the same time, and b) if that room could be quickly filled with water?