by Paul Alan Levy
In a decision issued this morning, the Massachusetts Appeals Court affirmed the dismissal of the trademark claims brought by Massachusetts software company Jenzabar against documentary filmmaker Long Bow Group, claiming that the use of the name “Jenzabar” in the keyword meta tag and the title tag for a web page about Jenzabar infringed and diluted its trademark. (We represented the film company). The decision serves as a gratifying confirmation of how baseless Jenzabar’s claims are. Even indulging Jenzabar’s most far-fetched assumptions, the court upheld a summary judgment by finding that no rational juror could possibly find a likelihood of initial interest confusion. And the opinion contains much that will be useful in defending Internet critics in the future. The emphasis on the need for evidence that confusion is probable, not just possible; the refusal to consider the possibility of confusion by merely careless consumers; and the insistence that a finding of initial interest confusion requires evidence of a deliberate bait-and-switch and an intent to confuse, not simply an intent to use a trademark to identify the subject of criticism, will all help other Internet speakers fend off suits intended more to punish them for criticism than to vindicate the objectives of the trademark laws. The court’s firm rejection of Jenzabar’s argument, that the mere fact that a certain number of Internet users reached a critical web site as a result of seeing a reference to the trademark holder in a search engine result is itself evidence of actual confusion that supports a claim of initial interest confusion, will be similarly useful. Most important, the court made clear that plaintiffs cannot force critics into an expensive trial just by dumping mountains of paper on the appeals court and arguing that there must be a triable issue of fact in there someplace.