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Initial interest confusion: much worse than defamation?

By Rebecca Tushnet

The New Yorker has a short blog piece about a trademark metatag/filename case brought by a former Chinese student leader profiled in a documentary about Tiananmen Square against the documentarians. The New Yorker's spin is that this is about an immigrant adopting American litigiousness, though alleging defamation is not, I think, as American as alleging trademark infringement.

The documentarians mention the former student leader's present company Jenzabar on some website pages, use of "Jenzabar" in the metatags for those pages, and use "jenzabar" as part of some filenames (shades of ballysucks and a couple of other cases; has anyone ever won a trademark claim against a non-top-level use of a mark in a URL?). Notably, the defamation claim was dismissed at the pleading stage, but it's so easy to plead trademark infringement in most courts that the obviously incredible trademark claims survived. A couple of recent decisions have recognized that pleading confusion shouldn't be sufficient, especially in cases with free speech implications, but unfortunately the Jenzabar court took the more common route, even though it could have relied on the dissimilarity of businesses to hold that initial interest confusion hadn't been properly alleged.

The divergent results really highlight the way in which IP has been elevated, and non-proprietary personhood interests demoted, in American law.

Full post as published by 43(B)log on June 05, 2009 (boomark / email).