Bankruptcy, Biglaw, Intellectual Property, Trademarks

Biglaw Firm Throws Even Bigger Hissy Fit

No one expects Biglaw to have the greatest sense of humor. Make no mistake, individual Biglaw partners can be hilarious. We actually talk to them all the time here. But when you get a big entity, the funny gets lost. See Apple or Saturday Night Live. Add in the fact that Biglaw doesn’t even have to pretend to pitch to the masses, and the tiny fragment of a fun-loving personality that mass advertising requires is lost.

So it should come as entirely zero surprise that a Biglaw firm has thrown a petulant fit over a parody website mocking it for behavior that even a federal judge has called into question….

The bankruptcy of Detroit continues to evoke strong feelings in the Wolverine state, and one person decided to turn the whole thing into a parody website. That’s when Jones Day threw a tantrum.

Some voters are still a little confused as to how Governor Rick Snyder even appointed an “Emergency Manager” to strip the city of its sovereignty after Michigan voters explicitly revoked his authority to do so. But Governor Snyder ignored the vote and appointed former Jones Day partner Kevyn Orr to take over the city of Detroit — and promptly throw it into bankruptcy proceedings. If this didn’t appear shady enough, in a totally separate, in no way related decision, Jones Day was hired as bankruptcy counsel for the city — a post that has so far generated over $17 million for Jones Day.

Detroit needed some major restructuring. It naively closed its eyes for far too long, hoping that the automobile industry and the automobile industry alone would create the resurgence of jobs needed to put the city back on financial track, and lost that bet.

But still, many feel Orr and Jones Day aren’t so much about repairing Detroit as aiding megabanks line their pockets. Perhaps that’s an exaggeration — municipal bankruptcies aren’t going to make everyone happy — but Judge Steven Rhodes has certainly raised concerns over some of the proposals coming from Orr and his Jones Day (former) colleagues. Judge Rhodes rejected multiple negotiated agreements from Orr’s office proposing large payouts to UBS and Merrill Lynch on the grounds that the banks were receiving sweetheart deals relative to the rest of Detroit’s obligations.

A couple weeks ago, someone registered You’d think the official governing the largest city in the state would already have dibs on that domain, but then you remember he was installed by imperial edict rather than democratic election. The site offered a minimalist parody of the Detroit bankruptcy, identifying “Detroit’s economic coup d’etat” as “brought to you by” a series of corporate sponsors, including Jones Day.

Jones Day didn’t think it was funny, which is understandable. What’s not understandable is that Jones Day didn’t think it was even trying to be funny. They, specifically Robert Ducatman[1], sent the proprietor of the website a nasty letter asserting that Jones Day is a registered service mark:

These rights are valid, incontestable and have not been granted to you to use in any manner whatsoever. Continued unauthorized use of these marks constitutes, at a minimum, service mark infringement, service mark dilution, and false description in violation of 15 U.S.C. § 1051 et seq. and state law. To the extent that you claim that your use of Jones Day is “fair use” under the Copyright Act, please be advised that 17 U.S.C. § 107 has no bearing or application to service mark infringement and false description under the Lanham Act. 15 U.S.C. § 1051 et seq.

I see what you did there. True, 17 U.S.C. § 107 has no bearing on service mark infringement, since that’s the statute for fair use of copyrights. What’s conveniently ignored is that there is still a fair use doctrine for marks. Cease and desist letters: hoping people don’t consult lawyers since time immemorial.

Is definitely safe under the harbor of fair use? I can’t give that advice from my vantage point. Should look into whether or not it’s safe by consulting with an attorney prepared to help them in Michigan? Yes. I mean, people aren’t likely to be confused into thinking that Jones Day is officially promoting a coup d’etat against duly ordained government officials. (Actually, given some of the stuff we’ve written about them over the years, there may be some likelihood of confusion.)

Since Jones Day lashed out, has taken down its corporate logos. Hurray Jones Day! Hopefully that was worth the Streisand Effect you just bought yourself. A mere 11 days ago, Jones Day was trolled by a sparse, fairly amateurish website that was noticed only by a self-described “Free Alternative Weekly.” Today, the American Lawyer and Above the Law are covering your outburst and describing it respectively as “rankled” and “a hissy fit.”

Enjoy the publicity!

You know the drill: the full cease and desist letter from Jones Day is on the next page….

[1] For some reason, the Am Law Daily article saw fit to specifically point out that he represented the Catholic Church in a sex abuse scandal. That seems like totally unnecessary well-poisoning, right? No disrespect to the good folks over there, but check out the full article and tell me that factoid isn’t awkwardly inserted into the article.[2]
[2] Stop it! Do not make that “awkwardly inserted” joke that I know you want to make.

(hidden for your protection)

comments sponsored by

Show all comments