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Court Upholds Right to Criticize Companies on the Web

Use of trademarked name in web page title and meta tags does not constitute infringement, appeals court holds

The Internet has presented consumers with a powerful new tool to review their experiences with products and services but it has also given companies new arguments that they can muster to try to silence their critics.

In a case that sets an important precedent for protecting First Amendment rights on the Internet, the Massachusetts Court of Appeals last week held that including a company’s trademarked name in the title and meta tags of a Web page about that company does not violate trademark law.

“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 in the case of Jenzabar v. Long Bow Group. “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.”

In particular, Levy said, 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.

Tiananmen Square

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.

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