A couple weeks back we reported on the big hissy fit that Jones Day threw over Kevynorr.com, at the time a bare-bones website that promised to be a sarcastic look at former Jones Day partner Kevyn Orr’s “emergency management” of Detroit. Jones Day wrote themselves a nasty cease and desist letter.
The anonymous proprietor of Kevynorr.com is represented by the Electronic Frontier Foundation, and their lawyers drafted a scathing response calling out Jones Day’s disingenuous, bullying letter….
Kevynorr.com is now fully armed and operational. After looking it over, if you think the site is officially endorsed by Jones Day, you probably should wear a helmet around the house. I mean, Kevyn Orr is represented as one of those aliens from V.
In its original cease and desist letter, Jones Day wanted its logo removed from the obvious parody site and smugly pointed out that the Copyright Act does not provide fair use protection for using service marks in a parody. As I noted at the time:
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.
As it turns out, the EFF had a similar response:
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 are aware, trademark law includes its own protection for fair use. See KP Permanent Make-Up, Inc. v. Lasting Impression L Inc., 543 U.S. 111, 114 (2004); ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 921 (6th Cir. 2003); New Kids on the Block v. News Am. Publ’g Inc., 971 F.2d 302, 306 (9th Cir. 1992) (nominative fair use protects use of marks the “purposes of comparison, criticism [or] point of reference”). Your letter ignores these protections. 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.
The letter also takes Jones Day to task for employing “improper legal claims” to discover the identity of the anonymous author. What’s the matter, Jones Day? Would you feel better with some transparency?
I didn’t think it was possible for Jones Day to come across as more of a petulant child than they did in their original letter, but reading such a thoughtful takedown puts everything in sharper relief. If you wondered if it was possible to punch someone in the nose with a letter, this is your answer. Check out the whole letter on the next page….