A tiny startup that was threatened by a massive law firm over nothing more than a humble hyperlink has been forced to settle and change its linking policies, handing Goliath the win in this gratuitous trademark case. Under the agreement, real estate startup BlockShopper can no longer include hyperlinks anywhere on its website to Jones Day, a massive Chicago law firm, except explicitly on URL text. Essentially, jonesday.com is okay, but not blah blah blah.
During the summer of 2008, BlockShopper linked to the Web profile of a prominent real estate lawyer in a posting that highlighted his purchase of a condo, and noted that Jones Day had purchased homes/condos/apartments on Chicago's North Side. The information on these sales is public record, and BlockShopper did nothing more than follow standard Web linking procedure that practically every website on earth follows. For reasons still unbeknownst to the world, however, Jones Day was very displeased by these links and filed a lawsuit against BlockShopper in September of 2008, leveling the odd charge of trademark dilution.
The complaint cites the issue as "confusion"—the claim was that people visiting BlockShopper and seeing the links in question might assume that it was somehow officially related to Jones Day. This, of course, was a ridiculous claim, but BlockShopper tried to play nice and consented to a temporary restraining order that required the site to remove the links. Soon thereafter, the Electronic Frontier Foundation and Public Citizen jointly filed an amici curiae brief on behalf of BlockShopper, pointing out the obvious: "linking is what web sites do—that is, after all, why it is called the 'World Wide Web'."
Unfortunately, the judge in the case refused to even look at the brief after Jones Day said the brief sided with one party (as most amicus briefs do); he also refused to dismiss the case at the request of BlockShopper. According to TechDirt, the judge even allegedly put pressure on BlockShopper to back down by saying, "Do you know, young man, how much money it's going to cost you to defend yourselves against Jones Day?"
BlockShopper did, in fact, realize how much money it would cost. Faced with crippling legal fees and an unsympathetic judge, the company was forced to settle the case out of court by agreeing not to use embedded links to Jones Day on any words or names. If BlockShopper wants to link to a specific attorney's profile at Jones Day's website, BlockShopper must state that the person in question is employed by Jones Day along with the text "more information about [so-and-so] can be obtained at Jones Day's website at www.jonesday.com/[remainder of URL here]" with a link encompassing only the URL. If you ask us, this almost sounds more like a bad Internet marketing scheme than a lawsuit settlement.
As pointed out by Slate, the conclusion of this lawsuit doesn't seem to solve any of Jones Day's alleged trademark concerns, and doesn't even prohibit the posting of attorneys' home purchases (presumably the information that Jones Day didn't like in the first place). The links still exist, just in a somewhat different, slightly awkward structure that is not clearly better than the original. In essence, Jones Day won by simply bullying BlockShopper until it was forced to give in and craft its links in the way that the law firm would prefer.
Turning the Web into a permissions-based linking system would be, at worst, catastrophic, and at best, annoying. We can only hope that future cases like this one will have outcomes that make more sense.
Further reading:
- Settlement agreement (PDF)
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