Jenzabar, a company that was founded by a student leader at Tiananmen Square and that makes software for institutions of higher education, brought defamation and trademark action against documentary filmmakers whose portrayal of the leader was unfavorable. After the defamation claims were dismissed, the company pursued trademark claims based on the theory that the use of the company’s name in the meta tags of pages of a film-related web site that discussed the company infringed and diluted the company’s mark. Representing the filmmakers, Public Citizen argued that the meta tags were noncommercial speech that truthfully described a subject of the web page and hence was protected by the First Amendment and that, in any event, that there was no confusion about the source of the web pages, that the trademarks were not diluted, and that the use of the trademarks was fair use.
The trial court granted summary judgment for the filmmakers, determining that there was no likelihood of confusion or dilution, effectively rejecting the application of initial interest confusion which it seemed “mere diversion,” and finding that Long Bow was protected by the doctrine of nominative fair use. Long Bow’s motion for an award of attorney fees was denied pending a ruling on Jenzabar’s appeal. The Massachusetts Appeals Court affirmed summary judgment, and the Supreme Judicial Court declined to conduct discretionary review. The Superior Court of Massachusetts granted Long Bow’s motion for attorney’s fees and costs.