If you criticize a competitor on your Website, you can't be told to take the criticism off your own site before the truth of either site's comments has been decided once and for all, a federal judge has ruled in a case pitting two tax-negotiation companies against each other. Nor does your criticism mean you violated your rival's trademarks if you turn up in Web searches for that rival, according to the same ruling.
Taxes.com, which had posted information about rival J.K. Harris related to a federal investigation of the latter firm, won a reprieve from U.S. District Judge Claudia Wilken March 28. Wilken ruled Taxes.com shouldn't be forced to remove or rewrite factual information about Harris to keep Taxes.com out of top search engine results for Harris just because the information wasn't exactly flattering.
"(B)ecause enjoining (those) statements prior to an adjudication of their truth or falsity would suppress arguably protected speech," wrote Wilken in overturning a March 22 ruling, "the court concludes that the balance of hardships does not tip decidedly in (Harris's) favor."
The Electronic Frontier Foundation, which sided with Taxes.com in the case and offered an amicus brief in its support, praised the March 28 ruling. "The court's decision to reverse an earlier ruling on Taxes.com restores the balance between trademark law and the First Amendment right to publish truthful information," Fred von Lohmann, an EFF senior intellectual property attorney, said in a statement.
Harris had argued not just that Taxes.com turning up on searches for Harris violated trademark law - an argument Wilken also dismissed - but that because Taxes.com's pages got "undue favor" in search results for Harris's own site, people looking for Harris would be pushed unfairly by the criticisms to turn to Taxes.com's services.
"The court cited a doctrine called 'initial interest confusion,' which addresses improper diversion of customers," the EFF said in a statement. "Many commercial search engines review text from websites as part of ranking the websites in search results, so Taxes.com's mentions of J.K. Harris caused the Taxes.com website to appear in search results for 'J.K. Harris'."
"While the evidence submitted to the Court demonstrates that (the) defendants' web site does contain frequent references to J.K. Harris," the March 28 ruling said, "these references are not gratuitous; rather, (the) defendants' web site refers to J.K. Harris by name in order to make statements about it."
The EFF had argued in its amicus brief that there are "legitimate" and "illegitimate" forms of "customer diversion," and that posting "pertinent information" isn't one of the "illegitimate" forms. "The intitial interest confusion doctrine should be carefully cabined in the Internet context to respect the difference," argued Lohmann, who wrote the brief. "(P)urely nominative used of a competitor's marks in the text of Web pages in conjunction with the publication of truthful information and opnion regarding the competitor's products should remain beyond the reach of the initial interest confusion doctrine."
Before the March 22 ruling, Taxes.com's Website included pages describing how Harris workers had told of wrongdoing within the company "while complaints piled up," as Wilken noted in her subsequent ruling. A March 31 search of Taxes.com's site turned up only one page, quoting a Wall Street Journal article about an Internal Revenue Service raid on Harris offices in 2000. The page also quoted from an e-mail purported to be from an IRS investigator confirming to Taxes.com's chief, Steven Kassel, that the IRS was indeed investigating Harris at that time.
