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Jones Day Wins Round in Blockshopper Case

More news in the lawsuit by law firm Jones Day against the Web site You may remember that as the case that Public Citizen lawyer Paul Alan Levy, in a post at the Consumer Law & Policy Blog, said deserves a prize for the "grossest abuse of trademark law to suppress speech the plaintiff doesn't like." (We wrote about it here and here.) Well, it wasn't gross enough to get the complaint thrown out of federal court in Chicago. U.S. District Judge John W. Darrah has denied BlockShopper's motion to dismiss the Jones Day complaint. He did, however, dismiss the law firm's claims against the Web site's two founders, Brian Timpone and Edward Weinhaus.

The judge's refusal to dismiss the claims of trademark dilution was based on his finding that the complaint presents "legal and factual issues not appropriate for resolution at this motion to dismiss stage." At Citizen Media Law Project, Sam Bayard criticizes the ruling for confusing "the court's obligation to credit factual allegations with its duty to determine whether the alleged facts state a cause of action." Bayard writes:

As a matter of policy, the decision is absurd. Deep linking is a ubiquitous feature of the web. Nearly every website and blog in existence relies extensively on linking. As Paul Levy wrote in September: "That is what web sites do – they link to other web sites (that’s what makes it a 'World Wide Web')." The court's decision exposes anyone who takes advantage of this basic feature of Internet communication to the prospect of substantial litigation costs.

The CMLP was among a group of four public-interest organizations that sought permission to file a brief as amicus curiae in support of the motion to dismiss. (The others were the Electronic Frontier Foundation, Public Citizen and Public Knowledge.) Judge Darrah also denied their request, concluding that "an amicus curiae brief would not now be helpful."

Posted by Robert J. Ambrogi on November 21, 2008 at 10:09 AM | Permalink | Comments (1)


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