Linking Liability

When Jacob Tiedt bought a new home in March 2008, the purchase was a matter of public record. But then it became unusually public.

The purchase appeared on BlockShopper.com, a Web site that reports on home sales in 11 metropolitan areas around the country. BlockShopper posted Tiedt's new address, the sale price, a description of the apartment the Jones Day associate purchased, a photo of Tiedt and a short bio of the attorney. BlockShopper also linked to Tiedt's bio at Jones Day's Web site.

In May 2008, another Jones Day associate, Daniel Malone Jr., purchased a condo. BlockShopper also reported the details of Malone's purchase, complete with his picture and a link to his bio at Jones Day.

In August 2008, the firm of 2,300 attorneys sued 15-person BlockShopper in a Chicago federal court--but not for violation of privacy. The suit, Jones Day v. BlockShopper, alleged that by mentioning Jones Day and linking to its Web site, Blockshopper infringed the law firm's trademarked name.

BlockShopper fought the suit for months. Then in February, after racking up a reported $110,000 in legal fees, the small start-up settled. It agreed to change the way it linked to Jones Day's site. The law firm claimed victory.

Many trademark experts, however, assert that BlockShopper's supposedly infringing links were not unusual. "Everyone links that way," says Bret Fausett, of counsel in Adorno & Yoss. "It's just industry standard."

Some fear this litigation could encourage other trademark owners to sue over links to their sites and might discourage Web site owners from using hyperlinks. "It could destroy linking as we know it," says A. Michael Froomkin, who teaches Internet law at University of Miami School of Law.

Privacy Prevails

Neither BlockShopper nor Jones Day would talk on the record about their dispute. But according to many outside observers, this lawsuit wasn't really about trademark infringement at all. It was about privacy.

"I can see why Jones Day was spooked by having the names and photos of their associates published when they purchased homes," says Jessica Litman, professor at University of Michigan Law School. "If I lived in a city where BlockShopper operated, and I ran into my name and picture on BlockShopper, I would be completely freaked out."

All the information BlockShopper posted was already publicly available, so bringing a privacy claim against BlockShopper would have been tricky. That's why, according to many legal experts, Jones Day sued on trademark law.

Jones Day alleged that by mentioning its name, linking to its Web pages and making use of information posted on those publicly available pages, BlockShopper created a false impression that Jones Day endorsed or was affiliated with BlockShopper.

Confusing Internet users in this way would probably be infringing. But according to most trademark experts, mentioning a company's name and linking to its Web pages does not create an impression of endorsement or affiliation.

"There was no trademark infringement," Fausett says. "Links by themselves don't give any flavor of sponsorship or affiliation."

According to attorney Paul Levy, Web site visitors expect to go to another place when they click a hyperlink. "You don't expect the other place to be a sponsor," says Levy, who works with consumer group Public Citizen, which attempted to file an amicus brief on behalf of BlockShopper. The judge, however, denied the amicus request, ruling it would not be helpful.


Settlement Satisfaction

Whether privacy or trademark concerns motivated Jones Day to sue, the settlement doesn't give it much in either area, according to many legal experts. Nothing in the settlement prevents BlockShopper from writing about Jones Day attorneys who purchase or sell homes, nor does it prevent BlockShopper from mentioning the firm and linking to its pages.

The agreement does, however, prevent BlockShopper from using photos from Jones Day's Web site without the law firm's permission.

It also requires BlockShopper to change the way it links to Jones Day's Web pages. It forbids the common practice of embedded links--underlining ordinary text to indicate a link. (For instance, clicking on "Jacob Tiedt" would bring the reader to Tiedt's bio page on Jones Day's site.)

The settlement requires that, when linking to a bio on Jones Day's site, BlockShopper must state "more information about the attorney is available at" and then explicitly list the URL in text.

Jones Day trumpeted this change, claiming in a press release that "as a result of the settlement, BlockShopper.com is no longer infringing Jones Day's service mark."

Many experts, however, assert that the alternative links make the text a bit clumsier to read, but don't address any trademark concerns. "The settlement does nothing to help Jones Day in regards to clarifying sponsorship or affiliation," Fausett says.

Many experts believe that Jones Day settled because it believed the settlement was the best it could get.

"If it had gone to trial, BlockShopper would have won. That's why Jones Day stopped pursuing this," Litman says. "BlockShopper settled because its legal bills were getting out of hand, and trial is incredibly expensive."


Fear Factor

The ramifications of the lawsuit are unclear. Some companies might follow Jones Day's lead and sue annoying Web sites for allegedly infringing hyperlinks.

But before filing suit, an aggrieved company should consider how the general public might react. "Firms in consumer markets might get a negative PR backlash," Froomkin warns. Jones Day's lawsuit certainly garnered the firm some harsh online comments.

The law, moreover, may not be on the side of a trademark owner that sues over links to its Web site. "There are lots of businesses that would like the rule to be 'you can't link to my site without my permission,' but so far that is not the law. The cases have gone the other way," Litman says.

As the Jones Day case demonstrates, however, it is not necessary to win in court in order to claim victory. "We've known for a long time that firms with large legal budgets can intimidate those without large legal budgets. It is as old as litigation," Froomkin says.

The mere fear of a Jones Day-type suit might affect how and whether Web sites link to other sites. "If other companies start doing this [filing infringement suits], it will make it harder to hyperlink. ... It will be bad for hyperlinking, which is bad for the Net," Levy says.

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Steven Seidenberg

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