Ding dong – Avis calling

It’s turning out to be a bit of an IP week…

Bill McGeveran reports on Avis, the car hire people, and their utterly unreasonable legal letters to blogger Eric Turkewitz (of the NY Personal Injury blog, mentioned in my Blawg Review earlier this month – a great blog). Turkewitz wrote about a case where the constitutionality of a particular law that deals with liability and rented cars was under discussion. He illustrated the post with logos of two well-known rental companies, Hertz and Avis. Avis wrote a letter complaining about the use of the logo (pictured, right), including the aggressively condescending remark (to Turkewitz) that: “understandably, trademark law is not within your area of expertise. Therefore, we trust that this was done out of ignorance and not based on an intent to misuse our mark to the benefit of your personal injury practice”. Yes. I’m sure that Eric’s practice income has gone through the roof since using an Avis logo in an article about the car rental industry. I hear that he’s just bought Mozambique with the profits.

Anyway….

Thankfully, after seeking advice (and some good comments on other IP blogs), Mr. Turkewitz has written back to Avis. In stylish form.

In one of those nice coincidences, on the same page in my feedreader I found this very relevant post from the Citizen Media Law Project – a report on the BidZick case (their logo is pictured here, too). It includes some (in my opinion unsatisfactory) speculation on bloggers-as-journalists (I’m not saying that I disagree with the conclusion – but it is hardly a model of clarity and the random reference to CNN BLOGS: YOUR SAY is equal parts baffling and pointless), and thankfully stumbles to the conclusion that the use of the trademark was acceptable. This is the right result, I would say, although it would be better, in policy terms, to have a clearer exemption for news / discussion / comment / criticial / analytical / secondary use (i.e. y’know, free speech!) rather than trying to fit things into a ‘news reporting and news commentary’ framework. And as I say, if this is what courts think of the bloggers-are-journalists debate, we’re in more trouble than we thought. It is right to be glad that BidZick’s pathetic attempt to squash criticism has been kicked out of court, but also necessary to note the weaknesses in the court’s dealing with the matter. (I’ve reproduced the relevant portion of the grant of summary judgement after the jump; read the PDF here).

All trademarks used in this post are for the purpose of illustrating the discussion and not to sell the product. Bite me.

Under § 1125(c)(4)(C), no “forms of news reporting and news commentary” are actionable under § 1125.
These terms are not defined in the Lanham Act. Further, there is no published case deciding whether a blogger is a journalist. However, in determining whether Smith was engaged in news reporting or news commentating, the court has applied the functional analysis suggested by commentators and the Plaintiffs in their memorandum in support of a preliminary injunction, which examines the content of the material, not the format, to determine whether it is journalism. See David L. Hudson, Jr., Blogging, http://www.firstamendmentcenter.org//press/topic.aspx?topic=blogging; (Pls.’ Mem. Supp. Preliminary Injunction Ex. 34 (Hudson on Blogging).). In addition, the court has considered the intent of Smith in writing the article. The court agrees that not all bloggers are journalists. However, some bloggers are without question journalists. See CNN BLOGS: YOUR SAY, http://www.cnn.com/exchange/blogs/.

Upon review of the content of the article, the court finds that Smith’s use of the BidZirk mark in the article was in the context of news reporting or news commentary. The article posted by Smith concerning the Plaintiffs is written for the purpose of conveying information to the public. In the four installments of the article, Smith describes his experience with BidZirk in great detail. (Pls.’ Mem. Opp’n Summ. J. Ex. 2 (Article).) In addition, Smith addresses the positive and negative aspects, in his opinion, of dealing with a an eBay listing company, such as BidZirk. (Id.) Further, Smith provides a checklist for using an eBay listing company and tips for selling items on eBay. (Id.) Smith felt that what he learned from his experience with BidZirk would be helpful to others in dealing with an eBay listing company. The fact that Smith reports negatively about his experience with BidZirk does not dictate that the article’s function or intent was not news reporting or news commentary.

There is no evidence that the sole purpose of the article was to denigrate BidZirk. Smith’s article was titled “Special Report: You Gotta Be Berserk to Use an eBay Listing Company! The Whole Story.” (Id.) Smith plainly states at the beginning of the article as follows: “In this special report . . . I’ll be telling my detailed story of using such a company and relate how my selling Apple parts on eBay for 9 years has given me unique insight into this matter.” (Id.) Smith further states that he has done research in preparation for his article as follows:

This is my story as experienced by me personally. I have dealt with a company called BIDZIRK, in my home town. I have also visited several competitors. In doing extensive Google research, I have found that my problems are almost universal . . . but that only larger clients really complain. At the end, I will offer a checklist for you to use when choosing a listing company that includes questions you may not have thought of before. (Pls.’ Mem. Opp’n Summ. J. Ex. 2 (Article).)

Smith engaged in background research and provided consumers with a checklist for use in selecting a listing company. Smith’s article evidences his intent to report what he believed was a newsworthy story for consumers. Based on the foregoing, no genuine issues of material fact exist and BidZirk’s Lanham Act claim fails as a matter of law.

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