BlockShopper v. Jones Day: The right of Web sites to link.

The law, lawyers, and the court.
Feb. 12 2009 4:49 PM

Linked Out

A case that threatens the right of Web sites to link freely.

Last April, startup real estate news site BlockShopper ran the headline "New Jones Day Lawyer Spends $760K on Sheffield" with a link to the bio for the lawyer in question—Jacob Tiedt—from the Web site of his law firm, Jones Day. In July, it ran a similar item about a home purchase by Dan Malone Jr., another Jones Day lawyer, with the link to his Jones Day bio.

BlockShopper was following standard operating procedure by linking to publicly available Web sites. But Jones Day got mad. The law firm (a big one, at 2,300 lawyers) has never publicly said why it sued; maybe the powers that be there thought the posts compromised their lawyers' privacy. Housing records are public documents, but the Web turns public into accessible, and the firm presumably wasn't thrilled about having its attorneys' home purchases broadcast. Jones Day demanded that BlockShopper remove the items. When BlockShopper refused, the firm sued the 15-staff startup for trademark infringement. Jones Day's legal theory was that BlockShopper's link would trick readers into thinking that Jones Day was affiliated with the real estate site.

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This may seem far-fetched, but the judge in the case didn't think so, and that led to a settlement this week that will require BlockShopper to change the way it creates links. And that's not a good signal to send about the Web, where linking has been an unrestricted currency available to all.

Trademark infringement is supposed to turn on consumer confusion. For instance, if you set up a roadside coffee stand, sell instant coffee, and market yourself as a Starbucks outpost, you're probably infringing on Starbucks' trademark by tricking people into thinking that you're the company.

The idea that readers of a real estate news site would somehow be confused by links to Jones Day, on the other hand, shouldn't have passed the straight-face test. One legal blogger proposed that the attorneys who brought the suit take ethics classes. Paul Alan Levy of Public Citizen described the lawsuit as a "new entry in the contest for 'grossest abuse of trademark law to suppress speech the plaintiff doesn't like.' " The digital rights groups Public Citizen, Electronic Frontier Foundation, Citizen Media Law Project, and Public Knowledge tried to file a friend-of-the-court brief asking for the case to be dismissed.

No go. In November, federal district court Judge John Darrah rejected the amicus brief and denied BlockShopper's motion to dismiss the case before trial. Two months earlier, he had issued an injunction requiring BlockShopper to remove the Jones Day articles while the case was pending.

Faced with the prospect of big legal bills and an unfriendly judge, BlockShopper co-founder Brian Timpone decided to settle. On Tuesday, the real estate site said it agreed to change how it links to Jones Day. BlockShopper will no longer use the names of Jones Days attorneys as anchor text. Instead, it will use the full and cumbersome URL. In other words, Timpone said, instead of posting "Tiedt is an associate," the site will write "Tiedt (http://www.jonesday.com/jtiedt/) is an associate." (The agreement also calls on BlockShopper to say that the lawyer in question is employed at Jones Day and that more information about the attorney is on the firm's Web site.)

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