In what appears to be a unique case, a Federal Court in Tampa Florida has ordered a company to use ‘negative keywords’ to avoid being associated with another firm’s trade mark.

In the case of Orion Bankcorp Inc. v. Orion Residential Financial, the court ruled that Orion Residential was basically devaluing the trademark and intellectual property value of the keywords people use in search engine searches that would take them to Orion Bankcorp. The court ordered Orion Residential to insert “negative keywords” into their website.

Without going into to all the legal shmegal, the court basically stated that Orion Residential was infringing Orion Bancorps trademark by inserting keywords that Orion Bancorp has trademark protection for in their name as used in keywords and such. The court entered an order:

“barring defendant from purchasing or using any form of advertising including keywords or “adwords” in internet advertising containing any mark incorporating Plaintiff’s Mark, or any confusingly similar mark, and shall, when purchasing internet advertising using keywords, adwords or the like, require the activation of the term “ORION” as negative keywords or negative adwords in any internet advertising purchased or used.”

This frankly is not unusual in terms of trademark cases. Please are always getting sued for trademark infringement in trying to siphon off business using someone else’s established good will.

Search engines often get sued for devaluing trademarks in this way. Google has been sued several times for selling key words in its’ Google AdWords program that a company may feel are protected trademark. Until the American Airlines suit however they have been primarily obscure companies not making big news . It is however the first time I have seen a court order a company to insert safeguard in their web site to protect the trademark of another company. If anyone has seen other cases like this I would would love to hear about them.

This is very similar to the issue in the much more prominent and publicized case of American Airlines v. Google. Without going into all the intricacies of the case American Airlines sued Google for allowing other companies to have their banners come up when Google searches for American Airlines and related words were done. The basic argument is that these banners devalue the intellectual property and infringe on the trademark of American Airlines. In layman’s terms? American Airlines was sick and tired of companies getting a free ride on the back of trademark value they worked so hard to establish while Google made a killing.

This case is still pending. Google is fighting back hard. They make a killing selling these keywords to companies. A win by American Airlines will have financial ramification for Google and set the standard for future suits of this nature.

We all know that keyword abuse in the business world is rampant. How many company specific keywords do you have on your business site in the hopes that people looking for the more established company will be decided to check out your web site instead when it appears in the search rankings. There is no getting around the fact that this practice tends to run afoul of U.S. trademark law.

I believe that these keyword suits will become much more common and high profile over the next decade as the internet becomes more and more integrated in the the everyday shopping experience. The American Airlines Suit is just the first high profile salvo.

I had better go take my Walt Disney and Mickey Mouse key words out of my web site for Mickey’s House of Hookers…..

I just read a story on Fox about a Tennessee couple who lost their son in Iraq suing an Arizona T-Shirt seller for 40 billion Dollars for the survivors of slain soldiers whose names are on the T-Shirt.

A complaint seeking class-action status for the lawsuit by Robin and Michael Read says Dan Frazier of Flagstaff has no right to profit from commercial sale of products that use the dead soldiers’ names without permission. Frazier’s “Bush lied — They died” T-shirts, sold at his site CarryaBigSticker.com, list Iraq war casualties’ names, and Frazier contends he is covered by First Amendment free-speech protections.

I understand the theory in principal as ridiculously flawed as it is. Fraziers position is also ridiculously flawed. This is not a First Amendment case. You can have First Amendment protection and still not be allowed to profit off that protection at someone’s expense….

There are so many examples that I wont even get into it.

What I will ge into are these ridiculous class action lawsuits that have no agenda other than money for the attorneys. Anyone who thinks this is about anything other than that is delusional. There is no agenda of social concern, free speech right or even those who have lost their lives in Iraq.

This is about some guy with a T-Shirt that makes money trying to keep what he has. This is about some slimy attorney or law firm preying on the grief of those who have lost loved ones trying to get a piece of the pie…..

I challenge whoever is handling this case to step forward and explain why he or she is not some “McDonald’s Hot Coffee Chasing” “As Seen On TV”, Picture on the Back Of A Bus” class action ambulance chaser….

Please tell us there is some “greater public social good’ here other than your climbing the social legal ladder on the backs of Iraq soldiers and vets and their families.

Am I singling out the attorney when I should also be castigating the seller of the T-Shirt? I sure am. I hold the members of my profession to a higher standard of social conciseness. The legal profession and social responsibility does not have to be a contradiction in terms……

In closing, I would personally like to thank the attorney who took this ridiculous case for perpetuating every negative stereotype and cliche out there……  You’re a hell of a humanitarian…..

Playoff caliber New York based national law firm with Mark Cuban style ownership recruiting All Star caliber players for it’s 2008 Championship Run. Must be able to play a high scoring up-tempo run and gun style. Must have been a top ten draft and must be on track to start at least 2800 hours for your current team. The following positions are in immediate demand:

1. Starting Center: Must be an established starting “bruiser” with a “Shaq Like” presence able to gracefully yet forcefully move through the litigation process and “block out” opposing counsel when unnecessary. Must have an established fan base who will faithfully follow you to your new arena. Must be willing to promote your new team with public appearances, autograph signings and possess the general arrogant swagger of an All Star starting Center…

2. Power Forward: Must be able to integrate seamlessly with the starting center for a flawless “post up’ game. Must be able to drive to the hoop in the face of mountains of briefs, unreasonable deadlines, obstructive opposing counsel and senile judges….

3. Point Guard: Must be able to run the offense as set by coach. Resolves complex legal issues with brilliant time effective research. Seamlessly passes off research opinions keeping bad passes to minimum. Able to stand his/her ground and take a charge for the team when the power forward or center mishandle the ball.

If you are a motivating high flying all star who can call the plays, push the ball, post it, pass it, slam it and jam it, we are the law firm for you! Call us at 212-NBALAW for an immediate tryout.

ITS SHOWTIME BABY!

Being an attorney, I had to laugh at the story about the web site FireGeorgeKarl. George Karl is the coach of the Denver Nuggets. These fire the coach web sites related to the coaches of sports franchises have become popular. There is even one out there called FireAvery.com. Avery Johnson is the coach of the Dallas Mavericks who are owned by my brother Mark Cuban. The absurdity of these sites and the notion that they have any effect on NBA decision making is self evident but hey, everyone has an opinion and the right to voice it as long as it does not cross into the area of slander and defamation.

What I found funny about the FireGeorgeKarl site was the Coach Karl’s attorney, Brett Adams, of the law firm of Adams, Babner and Gitlitz also decided to voice his opinion by email sent to the owner of the site. I guess Mr. Adams never bothered to read my DATAPINBALL post about thinking before you hit send……… His email threatening to “sue the owner of the site into bankruptcy” pinballed to the expected path of least resistance…… The owner of the site did exactly what I would have done. He posted the email on his web site……

What is ironic is that Mr. Adams impugned the quality of the web site owner’ life, asking if he had nothing better to do than to create such web sites…..

Mr. Adams obviously had nothing better to do than do take a three step process into legal idiocy….(Something every attorney has frankly done at one time or another including myself) The first step was to lose his temper over nothing at all; the second step was to write an email about it while he was still pissed; the third step was to hit send….

Talk about reducing your reputation value! Once more time the point is made that attorneys, especially attorneys with huge egos, have zero sense of humor…… That email was not written out of rational legal analysis, it was not written out of rational desire to achieve it a legal result. It was written out of sheer ego and a sense of self inflated importance……. This is an ailment very common to the legal profession. Now I will concede that Mr. Adams may very well have been instructed by George Karl to take some action but I doubt that Mr. Karl dictated the specific action to take….. Ego combined with carte blanche is a dangerous combination…….

I have a suggestion for Coach Karl. If he really wants to get results he should can Brett Adams as his counsel and retain the firm of Rabinowitz, Rabinowitz and Rabinowitz….. Three savage Jews that will tear the skin off you…. They kicked ass for Archie Bunker……

So let it be written……. So let it be done……