Generally speaking, if you use someone’s trademark without permission, you commit trademark infringement.  That is unless, of course, you’re a journalist who uses someone’s trademark as part of “news reporting” or “news commentary.”  If you fit into either of those categories, you’re pretty much immune from being sued for trademark infringement.

Enter the bloggers—or should I say, “web journalists”.  Bloggers are journalists—right?  I mean, they walk like journalists, write like journalists, and often claim to be journalists, so they’ve got to be journalists. 

If bloggers are journalists, then logic says that they are immune from prosecution for trademark infringement if they use someone’s trademark in their blogs without permission.

But are they journalists?  Are they really "immune"? 

Let’s say you’re unhappy with a particular national chain retailer, and to show your dissatisfaction, you start a blog called, “You Gotta Be Nuts to Buy Anything from Retailer X.”  To emphasize your point, you put Retailer X’s logo front and center on your blog.  In fact, you don’t just imitate the trademark; you actually copy it from Retailer X’s website, and paste it on your blog with a caption, “In case you weren’t sure about the retailer I’m talking about, here’s their logo.”

Have you committed trademark infringement?  Are you, as a blogger, a “journalist” who enjoys significant protection from trademark infringement lawsuits?

Would it surprise you to learn that up until a month ago, no court had published an opinion about whether bloggers are journalists?  You’d think that with all the blogging going on, some court, somewhere, would have opined on whether bloggers are journalists.  But alas, no, not a judicial word on the topic—until last month, that is.

The case of BidZirk LLC v. Smith, handed down on October 22, 2007 by a federal court in South Carolina, was the first published case to tackle the question of whether bloggers are journalists.

In that case, the defendant, Smith, posted a four-part article on his blog titled, “Special Report: You Gotta Be Berserk to Use an eBay Listing Company! The Whole Story.”  (Personally, I was glad to see that someone brought the word “berserk” back into mainstream writing.)  Smith’s article addressed his experience using BidZirk, an eBay auction listing company.  Smith posted BidZirk’s trademark in his blog, and discussed some positive—but mostly negative—aspects of using a company such as BidZirk. 

BidZirk sued Smith alleging, among other things, trademark infringement.  Smith defense was, in essence, “I’m a journalist.”

Result:  He’s a true blue journalist; claim dismissed.

But don’t go starting your own “I HATE [insert name here]” blog just yet.  The court pointed out that “not all bloggers are journalists,” but “some bloggers are without question journalists.”

Huh?  So, how do you know if you’re a journalist? 

The answer is fact sensitive, and without additional cases to provide more guidance, it’s hard to tell where verbosity ends and journalism begins.  Here, the court arrived at its conclusion after considering the content of the material on Smith’s site, as well as Smith’s intent in writing the article.  But these factors may differ from case to case, and someone’s intent is not always readily discernable.

My thoughts?  (Glad you asked….) Bloggers are journalists and deserve to be treated as such.  That said, however, bloggers still have to abide by the rules of the electronic road: no defamation, and no use of other people’s trademarks without making it clear that the use (i) is relevant to the news and/or commentary contained within the blog, and (ii) is NOT sanctioned by, or the opinion or thoughts of, the trademark holder. 

Questions?  Comments?  Send ‘em on in.  Our (proverbial) phone lines are open…..