Blogging can hurt!

Jenzabar, the educational software company Paul Levy and I mentioned on my blog last month (and which Overlawyered picked up) in connection with its “trademark as censorship tool” litigation, is back at it again — and not a little clumsily, for all its cleverness. As Levy reports, the company’s lawyers are

now claiming that such blogging is illegal. According to Jenzabar, a blog post nominating Jenzabar for the “Trademark Abusers Hall of Shame” will “create controversy” and “cause prejudice to Jenzabar,” and any lawyer who engages in such blogging is in violation of Massachusetts court rules.

Jenzabar has sued the Long Bow Group for placing Jenzabar’s name in the keyword meta tags for a web page about Jenzabar, which, Jenzabar claims, has unfairly placed this web page among the top search results when Internet users do a search for “Jenzabar.” This placement, Jenzabar protests, allows university IT personnel who are trying to decide whether to buy Jenzabar’s software and services to learn adverse facts about Jenzabar which might, in turn, lead them to decide not to do business with Jenzabar.

Jenzabar is particularly exercised that my blog post cited a statement by Google back in September announcing that its search rankings have not employed keyword meta tags for many years. This information, Jenzabar insists, is not admissible in court because Matt Cutts’ statements on the subject on the Google’s blog for webmasters, which Google calls “Official News,” is not an “official statement by Google.” It appears to be Jenzabar’s position that blog posts about a lawsuit must comply with the rules of evidence.

Or something. In fact, Jenzabar’s argument is a tad cleverer than Paul (wearing his advocacy hat, after all) is letting on — and, as we will see, more than a tad dumber.

For one thing, Janzabar’s kvetch is incorporated into a submission urging the court to “exercise its discretion” not to permit Paul to appear in the case pro hace vice, i.e., to appear before a court to which he is not admitted “for this case.”   So there is no tort claim based on blog defamation nor, for that matter, is it necessarily the case that the First Amendment trumps any old thing or is involved hardly at all.

When courts are given “discretion” to make decisions about case management, they are given a lot of leeway before they are considered to have “abused” that discretion.

The second clever thing is that Jenzabar is saying that the reason Levy should not be admitted in the case is that he’s been blogging about it, in violation of Massachusetts Rule of Professional Conduct 3.6, which prohibits extrajudicial statements, which are defined as, more or less, “inadmissible stuff.” In other words:   Counselor, if you couldn’t get that into evidence, it shouldn’t go into the papers.

Most judges like rules such as these very much. Hence, the cleverness.

The not-so-clever, however, comes in two parts, too. First — and this is what Levy picked right up, naturally — the best they could do in terms of “inadmissible” was a fairly technical argument, and not necessarily a correct one, regarding what is actually an assertion so uncontroversial at this point that judges ought to (though seldom do) just take judicial notice of it already and move on in life — namely, the following:

Metatags are ignored by search engines, or are so severely discounted as to put their use firmly in the category of de minimis non curat lex. (That axiom’s not always applicable to trademark law, but bear with me.)

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(Originally posted on LIKELIHOOD OF CONFUSION®.  I adapted it a little for civilian use here).