MCLC: Jenzabar ordered to pay attorney fees

[Denton, Kirk]

MCLC LIST
From: Robert Eng <robert_eng at redlands.edu>
Subject: Jenzabar ordered to pay attorney fees
***********************************************************

This is the latest news on the Jenzabar-Long Bow lawsuit. The online
source has the complete text of the court decision.

Bob

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Source: Techdirt (10/23/13):
http://www.techdirt.com/articles/20131023/00582224976/trademark-bully-jenza
bar-ordered-to-pay-500000-attorney-fees-over-its-unrelenting-attack-documen
tary-filmmakers.shtml

Trademark Bully Jenzabar Ordered To Pay $500,000 In Attorney Fees Over Its
Unrelenting Attack On Documentary Filmmakers

For years now, we've covered the bizarre legal fight between software
company Jenzabar and some documentary filmmakers, Long Bow Productions.
One of Jenzabar's founders, Chai Ling, was one of the student leaders of
the Tiananmen Square uprising -- a fact that Jenzabar has played up many
times in its promotional efforts. Long Bow made a documentary about the
uprising, and in that film, it shows Ling making some comments (that
apparently she'd prefer she never said out loud) about how she hoped for
bloodshed. Now, most people would brush off those comments as youthful
excess of an immature activist, but Ling, now living in the US and using
her activist roots to promote the company, instead resorted to suing Long
Bow Productions for defamation and trademark infringement. The defamation
lawsuit went out the window pretty damn quick (tough to be defamation when
you actually said the stuff they quoted you saying). She then focused on a
wacky and totally ridiculous trademark claim, arguing that because the
filmmakers mentioned Jenzabar on their website (and, specifically, in the
title and meta tags) about the film, it was trademark infringement.

Jenazabar lost the lawsuit, but only after engaging in extensive and
costly discovery and depositions, then appealed on a ridiculous and
obsolete theory. They then lost the appeal. And, now a court has
thankfully ordered Jenzabar to pay $511,943.12 in attorneys' fees and
expenses for pursuing such frivolous legal strategies, clearly designed to
silence free speech, rather than for any legitimate trademark purpose. The
court is pretty clear on this in slamming the company for its efforts and
awarding such a large amount:

<<The central element of abuse of process is the use of litigation for an
ulterior purpose -- that is, a purpose other than to achieve relief for
the wrong alleged. The overall record of this case leaves no doubt that
that is exactly what Jenzabar did; it subjected Long Bow to protracted and
costly litigation not to protect the good will of its trademark from
misappropriation, but to suppress criticism of Jenzabar's principals and
its corporate practices.

[....] Equally indicative of Jenzabar's ulterior purpose is its conduct of
discovery, particularly its pursuit of lines of inquiry in depositions
that had no conceivable relevance to its claims. The exercise of
discretion by the judge who heard discovery motions not to award sanctions
at that time does not preclude this Court's consideration of Jenzabar's
conduct at depositions as part of the totality of the circumstances of the
case.

Similarly instructive as to Jenzabar's ulterior purpose is its statement
of facts in opposition to summary judgment, in which it set forth a series
of assertions to the effect that statements by Long Bow on its Jenzabar
page and elsewhere were harmful to Jenzabar's reputation and its "standing
in the academic community." Clearly, Jenzabar's concern was not user
confusion as to sponsorship or source, but harm to its reputation arising
from the content of Long Bow's statements. Jenzabar's multiple and
shifting legal and factual theories, asserted at the various stages of the
case, support the same conclusion, as does its objection to pro hac vice
admission of the lawyer who assumed Long Bow's defense after it had
exhausted its resources. In this regard, the differences in economic power
between the parties is one of many circumstances that tends to confirm the
conclusion that Jenzabar engaged in extortionate conduct, making this case
exceptional.>>

Jenzabar might still appeal this ruling, apparently, and given its
willingness to drag this on for years and years and years, despite almost
no chance of prevailing, it seems like there's a decent chance it will do
so.