In Win for Free Speech, Appellate Court Confirms Use of Trademarked Name in Web Page’s Title and Meta Tags Does Not Constitute Trademark Infringement

Oct. 19, 2012

In Win for Free Speech, Appellate Court Confirms Use of Trademarked Name in Web Page’s Title and Meta Tags Does Not Constitute Trademark Infringement

Court Upholds Web Page Criticizing Company Founded by Leader of Tiananmen Square Protests

 WASHINGTON, D.C. – Including a company’s trademarked name in the title and meta tags of a Web page about that company does not violate trademark law, the Massachusetts Court of Appeals confirmed in a ruling this week in the case of Jenzabar v. Long Bow Group, upholding an earlier decision.

 The court’s opinion sets important precedent for protecting First Amendment rights on the Internet. In particular, the court’s emphasis on the need for evidence that confusion is probable; the court’s refusal to consider the possibility of confusion by merely careless consumers; and the insistence that there must be a deliberate intent to confuse will all help prevent targets of criticism on the Internet from using frivolous trademark claims to punish people for speaking openly and freely.

“Title tags and meta tags are noncommercial speech that truthfully describe a subject of the Web page and should be protected by the First Amendment,” argued Paul Alan Levy, the Public Citizen attorney representing the defendant. “People should be allowed to use the Internet as a tool for open criticism and debate. With this opinion, the court came down on the side of free speech.”

The defendant, an award-winning documentary company named Long Bow Group, made a film about the historic 1989 Tiananmen Square protests in China, which featured Ling Chai, a student leader in the protests. Chai now runs the company Jenzabar Inc., which makes software for colleges and universities. Chai didn’t like the way she was portrayed in Long Bow’s film, so she and her company sued over the website about the film.

 After Chai’s claims of defamation fell flat, Jenzabar proceeded with claims of trademark infringement and dilution – based on Long Bow’s use of the name “Jenzabar” among the meta tags on pages about that firm on the film’s website. Both claims failed in Boston’s Suffolk County Superior Court when Judge John Cratsley ruled that Long Bow’s inclusion of the software company’s name in its meta tags was protected as fair use.

 Adam Ziegler and Christopher Donnelly of the Boston firm of Donnelly, Conroy and Gelhaar were local counsel for Long Bow Group.

  To read the Massachusetts Court of Appeals opinion in the case, visit http://www.socialaw.com/slippf.htm?cid=21662&sid=119.

 To read more about this case, visit https://www.citizen.org/litigation/forms/cases/getlinkforcase.cfm?cID=575 !!!.