This article originally appeared in sister publication The Am Law Litigation Daily.
The Electronic Frontier Foundation is taking Jones Day to task for sending a cease-and-desist letter to a critic who used the firm’s logo on a satirical website. According to the influential intellectual property nonprofit, Jones Day is dangling a spurious legal claim in hopes of censoring protected speech.
“Big law should not be a big bully,” EFF wrote on its website Tuesday.
Former Jones Day partner Kevyn Orr is serving as Detroit’s emergency financial manager, and Jones Day has advised the city on its restructuring. On May 26, an anonymous blogger launched a satirical website, KevynOrr.com, that accuses Orr and Jones Day of reorganizing the Motor City’s debts to benefit investment banks rather than Detroit’s citizens. Jones Day’s logo appears on the site under the words “Detroit’s economic coup has been brought to you by.”
On June 9, Jones Day fired off its cease-and-desist letter, which the owner of KevynOrr.com has made public. The letter, written by intellectual property partner Robert Ducatman, threatened a trademark infringement lawsuit unless the site removes the Jones Day logo.
KevynOrr.com’s owner initially complied, as The Am Law Daily reported here. But the blogger has now reloaded. He or she restored the Jones Day logo and beefed up the site’s content on Tuesday. And EFF is providing the blogger free legal counsel.
In a letter to Jones Day’s Ducatman dated June 23, EFF staff lawyer Daniel Nazer asserted that KevynOrr.com’s use of the Jones Day logo was obviously parody, and that it therefore qualifies as “fair use” under U.S. trademark law. Nazer says Jones Day not only threatened frivolous litigation but purposefully tried to confuse KevynOrr.com’s owner about the law.
“In your letter, you write that the Copyright Act’s fair use provision ‘has no bearing or application’ to trademark infringement. But, as I’m sure you’re aware, trademark law includes its own protection for fair use. Your letter ignores these protections,” Nazer wrote. “It is difficult to escape the conclusion that this was a calculated attempt to confuse and intimidate a person you expected to be unfamiliar with the law.”
Ducatman didn’t immediately respond to a request for comment.