For want of a nail
Feb 25, 2009 Gelt, Lex scripta, Stragety
I blogged at LIKELIHOOD OF CONFUSION® about what Sam Bayard explains masterfully as the
settlement of Jones Day’s trademark lawsuit against real estate news site BlockShopper.com. In the lawsuit, Jones Day alleged that BlockShopper infringed and/or diluted its trademark by using the name “Jones Day” to identify two of its associates who purchased homes in Chicago and by using anchor text in hyperlinks from each associate’s name back to their lawyer bios on Jones Day’s own website (here, here).
In my post, in Sam’s post, and in another post I linked to by blogger Ryan Gile, the main question is: What did Jones Day accomplish? By virtue of the bad publicity garnered by this lawsuit, as well as what appears to be a friendly rollover by a local federal judge, these associates’ bio pages at the Jones Day website are getting hit more often than could conceivably ever otherwise happen. The settlement is essentially a face-saver for Jones Day, which must realize that on appeal it would lose the bit of leverage it got in early proceedings due to inexplicable rulings, while having outgunned the financially overwhelmed defendant website that could not afford an appeal anyway. What was gained, we all ask?
Simple: That rare commodity of loyalty.
It is not, as Bayard quotes Public Citizen blogger Paul Levy as saying, “in some ways, Jones Day ‘achieved a great deal.’ It sent a message to other websites that “it is not a firm to be trifled with, and that, when Jones Day ‘”asks” you to do something, you had better do it or you are going to have to spend hundreds of thousands of dollars to defend yourselves.’”
No. No major law firm needs to prove that by going through what Jones Day did in this case. That’s what they’re selling right out of the box.
What Jones Day did was keep an implied promise to its employees,especially those most vulnerable — junior associates — that if their work or any aspect of their association with the law firm results in something that, through their own fault or otherwise, puts some meaningful aspect of their personal lives on the line, they will stand behind that employee to the full extent of its considerable power.
In all this, it’s easy to forget that what Blockshopper was doing — publishing the names of Jones Day lawyers who bought houses, for whatever reason, was not particularly nice. It utilized publicly available, but typically obscure, filings about real estate purchases to make relatively succesful, but also typically obscure, individuals “Internet news” just because they bought a house and happened to have a linkable biography on the website of the company where they worked.
I’m not happy about the harm, probably minor, done to trademark law by the bad law and the bad “precedent” set by proceedings and settlement here, the fulcrum of which was inexcusably bad judging. It’s a pattern I know all too well.
But by its lawyers, Jones Day didn’t just do the right thing, it did the only thing it could do by going all out to protect its people from having to take heat in their personal lives merely because they work at, and, significantly, permit their bios and photos to be posted for the benefit of, Jones Day.
