The first reported decision on the subject of bloggers as journalists has been rendered. This is important due to statutory protections that may exist for journalists.

In BidZirk v. Smith, a pro se blogging defendant beat back a lawsuit from an eBay listing company that alleged, among other issues, trademark infringement due to use of the mark by Smith of BidZirk on his blog. Smith responded by saying he could use the mark as a journalist. The decision and analysis are at the Citizen Media Law Project and is also written up by Eric Goldman and Marc Randazza. Since I’ve now been threatened by Avis over use of its logo on my blog, this has become of interest to me.

[The issue of the blogger-journalist also presented itself in another context recently when Howard Bashman refused to remove a Second Circuit Court of Appeals decision that had been published by the court, then placed on the blog How Appealing, and that the court sought to recall.]

US District Judge Henry Herlong, Jr., sitting in the District Court for South Carolina, wrote the following with respect to bloggers as journalists:

Even if Smith has infringed BidZirk’s mark, the court finds that this infringement is excused by a statutory defense. Under §1125(c)(4)(C), no “forms of news reporting and news commentary” are actionable under §1125. These terms are not defined in the Lanham Act. Further, there is no published case deciding whether a blogger is a journalist.

However, in determining whether Smith was engaged in news reporting or news
commentating, the court has applied the functional analysis suggested by commentators and the Plaintiffs in their memorandum in support of a preliminary injunction, which examines the content of the material, not the format, to determine whether it is journalism. See David L. Hudson, Jr., Blogging; (Pls.’ Mem. Supp. Preliminary Injunction Ex. 34 (Hudson on Blogging).). In addition, the court has considered the intent of Smith in writing the article. The court agrees that not all bloggers are journalists. However, some bloggers are without question journalists. See CNN BLOGS: YOUR SAY .

Upon review of the content of the article, the court finds that Smith’s use of the BidZirk mark in the article was in the context of news reporting or news commentary. The article posted by Smith concerning the Plaintiffs is written for the purpose of conveying information to the public. In the four installments of the article, Smith describes his experience with BidZirk in great detail. (Pls.’ Mem. Opp’n Summ. J. Ex. 2 (Article).) In addition, Smith addresses the positive and negative aspects, in his opinion, of dealing with a an eBay listing company, such as BidZirk. (Id.) Further, Smith provides a checklist for using an eBay listing company and tips for selling items on eBay. (Id.) Smith felt that what he learned from his experience with BidZirk would be helpful to others in dealing with an eBay listing company. The fact that Smith reports negatively about his experience with BidZirk does not dictate that the article’s function or intent was not news reporting or news commentary.

There is no evidence that the sole purpose of the article was to denigrate BidZirk.
follows:

This is my story as experienced by me personally. I have dealt with a company called BIDZIRK, in my home town. I have also visited several competitors. In doing extensive Google research, I have found that my problems are almost universal . . . but that only larger clients really complain. At the end, I will offer a checklist for you to use when choosing a listing company that includes questions you may not have thought of before.

(Pls.’ Mem. Opp’n Summ. J. Ex. 2 (Article).) Smith engaged in background research and provided consumers with a checklist for use in selecting a listing company. Smith’s article evidences his intent to report what he believed was a newsworthy story for consumers. Based on the foregoing, no genuine issues of material fact exist and BidZirk’s Lanham Act claim fails as a matter of law.

This post may be a substantial deviation from New York personal injury law, but it seems to be a worthwhile one.

Links to this post:

don’t bidzirk me
following on the heels of the future of reputation, dan solove’s cautionary tale of the internet, comes eric turkewitz’s post on bidzirk v. smith. this case involved an ebay reseller’s attempt to crush an unhappy customer who posted …

posted by [email protected] (SHG) @ November 01, 2007 3:13 AM

To: Fred Grumman, Associate General Counsel, Avis Budget Group, Inc.

Dear Mr. Grumman:

I had used an Avis trademark on September 17th to discuss a decision holding the Graves Amendment unconstitutional. That amendment, which I believe Avis fought for, granted immunity to car rental and leasing companies from state laws that would hold them vicariously liable when the renters/lessors were negligent and injured someone.

On October 23rd you wrote to me on behalf of Avis in the comments section of that post, to complain about my use of the Avis trademark, which is shown here in the upper, right corner.

So here is my response. I do it publicly, since that is how you chose to contact me.

In writing this blog and engaging in citizen-journalism, I often use the trademarks of companies when discussing their news. That seems to be a pretty clear First Amendment right.

In your letter to me you sought to trump my First Amendment right when you wrote:

We have the greatest respect for your right to express your opinions on your blog, but that does not include the right to use Avis’ trademark as you have done in this particular piece.

Understandably, trademark law is not within your area of expertise. Therefore, we trust that this was done out of ignorance and not based on an intent to misuse our mark to the benefit of your personal injury practice.

We ask that you remove it immediately and refrain from any similar use in the future.

Having thought about the issue, and discussed it privately with some, and seen public comment from others (see the comments section here, as well as at Trademark Law, 43(B)log, and Bill McGeveran), I am at a loss to figure out exactly how your trademark claim trumps my free speech rights. Since, as you believe, trademark law is not within my area of expertise, and that I am simply ignorant, perhaps now is the time for you to set forth exactly how and why I should surrender my constitutional rights to your company.

So send me a proper cease and desist letter. Set forth for me with specificity your claims of legal superiority. You now have the opportunity to demonstrate your expertise and analysis in this arena since I, as you indicate, am simply too ignorant to know it myself.

Until you do that, however, I will assume your threat is an empty attempt to bully and intimidate. And so, the mark remains on my original post.

Yours,

Eric Turkewitz
(Just a simple personal injury attorney, not a trademark law guru)

P.S. I note that your trademark is now popping up on other legal blogs, so you might want to consider sending cease and desist letters to other attorneys as well.

Links to this post:

ladybugs on my mind
[sccl] i did not go to bed planning to think — much less write — about ladybugs today. but a segment of naturewatch, which was playing in the background on my local public radio station this morning has placed that famous genus of …

posted by David Giacalone @ November 13, 2007 12:46 PM

ding dong – avis calling
it’s turning out to be a bit of an ip week… bill mcgeveran reports on avis, the car hire people, and their utterly unreasonable legal letters to blogger eric turkewitz (of the ny personal injury blog, mentioned in my blawg review …

posted by Daithí @ October 30, 2007 1:22 PM

avis contests law blogger’s fair use of logo
last month, law blogger eric turkewitz of the new york personal injury law blog published this post about a judicial decision overturning a federal statute that’s relevant to liability of rental car companies. …

posted by William McGeveran @ October 29, 2007 2:07 PM