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Another Case of Abusive Trademark Claims to Suppress Speech — John Dozier redux

Cross-posted at Consumer Law and Policy Blog

By Paul Levy

A few weeks ago, I nominated the law mega-firm Jones Day for an award for the most abusive trademark claim brought to suppress speech they don’t like. Today’s post concerns another abusive trademark claim that might rival Jones Day’s except for the fact that its progenitor, John W. Dozier, Jr., already has such a reputation for abusive intellectual property claims that few will find his new stunt surprising. Dozier has received perhaps his greatest recognition for his claim that the posting of cease and desist letters infringes the author’s copyright; other notorious Dozier-isms have been discussed on this blog here and here.

The case is the product of a spat between Dozier and Ronald J. Riley. Dozier’s firm sent Riley a demand letter claiming that certain comments posted on one of his web sites were defamatory and demanding that they be removed. Riley, taking offense, created a rather over-the-top web site at www.cybertriallawyer-sucks.com about Dozier and his firm (whose main web site is at www.cybertriallawyer.com). The criticism on the sucks site is quite harsh, and one can understand why Dozier would be upset about it. And Riley is a man who arouses strong opinions, to be sure. But although Dozier has asserted in correspondence that Riley’s site “contains vast quantities of false, defamatory statements,” he has not opted to file suit for defamation.

Instead, early last month, Dozier filed a lawsuit in a Virginia state court claiming that Riley violates his trademark because, in his “sucks” web site, Riley embedded links in text using Dozier’s firm’s name that went, not to the web site for Dozier’s law firm, but to a page on the web site inventored.org that lists cease-and-desist letters that Riley has received from Dozier and Riley’s responses to those letters. Somewhat the opposite of Jones Day’s claim – that a link to the trademark holder’s own web site infringes its trademark – Dozier claims that a link infringes his trademark unless it does go to his own web site.

Of course, this claim is just as preposterous as Jones Day’s. Contrary to Dozier’s allegation, Internet users do not expect that a hyperlink embedded in a trademark will necessarily go to the trademark holder’s web site. It may, for example, link to a wikipedia article, or to a collection of articles about the trademark holder, or to a criticism of the trademark holder. Or it may go someplace else. Trademark law does not regulate hyperlinking, hence the trademark holder simply does not have the right to dictate the content and direction of hyperlinks.

Using a Lawsuit as a Bullying Tactic Against ISP’s

Had Dozier simply brought his lawsuit against Riley, that would have been bad enough, but his conduct was more nefarious. Although Dozier filed his lawsuit, he does not seem to have served it on Riley. Instead, he has used the making of a claim for trademark infringement to warn the hosts of Riley’s web site that if they do not take the web site down they risk a further display of Dozier’s wrath, directed at them. See here, here, and here. And his invocation of trademark law was very crafty, because although the Communications Decency Act immunizes ISP’s from liability for most claims based on the content of web sites that they host, that immunity does not extend to trademark claims. Dozier has bragged publicly about how effective his threats of litigation for contributory infringement have been.

Using Irrelevant Allegations in a Lawsuit to Promote Attack Journalism?

In making his claims based on trademark infringement, Dozier larded his complaint with criticisms of Riley, but the criticisms appear to have nothing to do with the trademark claim in the complaint. Marc Randazza speculates that Dozier is taking advantage of the litigation privilege to defame Riley without being subject to suit. It does appear that at least one blogger has taken Dozier’s assertions about Riley at face value, republishing Dozier’s accusations without apparent investigation.

Addressing the Bullying Tactics

In a complaint filed today, we seek a declaratory judgment that Riley has not infringed Dozier’s trademarks or defamed him. We also seek an order forbidding Dozier from claiming trademark infringement in order to get Riley’s web site taken down. This would leave Dozier free, of course, to criticize Riley as much as he likes, just as Riley should be free to criticize Dozier.

It remains to be seen whether, at this point, Dozier will be content to allow the litigation to play itself out, recognizing that if he prevails on his trademark claims, the result will be to force the reform of what he claims is an infringing web site, or whether he will continue to try to bully Riley’s new ISP with a threat to hold it liable.