Wednesday, November 28, 2007

USA Today / Gannet NewsWire covers Bidzirk vs Smith

Gannet Writer; Barbara Wall Says Bidzirk vs Smith Has Immense Political Implications

A blogger who wrote for the purpose of conveying information to the public is a journalist under federal trademark law, a South Carolina federal court recently ruled. (BidZirk, LLC v. Smith, Oct. 22, 2007.) This issue before the court parallels a similar question currently faced by Congress in deciding who should be protected by a federal shield law.
The case decided last month arose from a four-part article posted by Philip Smith on his blog in 2005. Smith wrote about his experience using BidZirk, a company that takes items on consignment and sells them on eBay.

In the articles, Smith discussed the positive and negative aspects of using eBay auction companies and voiced some complaints about BidZirk and its president. Smith illustrated the articles with BidZirk's logo.

The company sued Smith for defamation, invasion of privacy and violating a federal law that protects trademarks from being used in a misleading way.

The federal law, however, does not apply to most forms of "news reporting and news commentary." Smith argued that his blog fell under the exception, and the court agreed.

The court applied a "functional analysis" to the question and based its decision on the "content of the material, not the format" in which it is presented to the public.

... The issue of who the law considers to be a journalist also is facing Congress in its efforts to pass a federal shield law.

The original versions of the bills introduced in the House and the Senate contained broad definitions of “journalist” and “journalism” which would have covered almost all bloggers and non-traditional journalists.

She erred with this statement though:

The federal law, however, does not apply to most forms of "news reporting and news commentary." Smith argued that his blog fell under the exception, and the court agreed.

The court was forced to agree ... the Lanham Act which is a clarification of copyright and trademark law states exactly:

Directly as stated on The Cornell Law Website:

The Lanham Act defines the statutory and common law boundaries to trademarks and service marks. Trademarks (and service marks) are words or designs used in the advertising of goods and services. Rights to use a trademark are defined by the class(es) for which the trademark is used. Therefore, it is possible for different parties to use the same trademark in different classes. The Lanham Act defines the scope of a trademark, the process by which a federal registration can be obtained from the Patent and Trademark Office for a trademark, and penalties for trademark infringement.

The following shall not be actionable under this section:

(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.

(B) Noncommercial use of a mark.

(C) All forms of news reporting and news commentary.

NOTE: IT doesn't say MOST - it says ALL

Also note that text only has to meet ONE of these stipulations. The Plaintiff attorney stubbornly tried to claim otherwise in my case. He also claimed that my article fit none of the three - when in fact I was able to argue successfully within the summary judgement that my article fit all three. The Magistrate Judge had bought into the Plaintiff attorney's argument of my article not qualifying because it was used commercially. The District Judge however, understood that this was a misinterpretation as I was not specifically benefitting from Bidzirk's logo nor was I specifically pointing out their logo to bring commerce or click through ad revenue to my site.


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