Jenzabar, Inc., Ling Chai, and Robert A. Maginn, Jr., v. Long Bow Group, Inc.

Jenzabar was founded in 1998 by Chai Ling. Since then, there have been various lawsuits involving Chai, Jenzabar, and/or Jenzabar's CEO Robert Maginn. Two of the most recent ones have been documented in The Boston Globe: "Chinese Rights Activist Sued for Bias," The Boston Globe, July 1, 2012, and "Mass. GOP Chair's Firm Spent on Politics, Lawsuit Contends," The Boston Globe, August 19, 2012. See this link for earlier reporting on Jenzabar from sources such as The Boston Globe and Forbes.

Chai, Maginn, and Jenzabar also pursued a lawsuit against the Long Bow Group for over five years, attempting to censor this website by claiming defamation and trademark infringement. In August 2008, the court threw out the defamation claims, while allowing Jenzabar to proceed with the trademark claims, even though "Jenzabar seems unlikely to prevail" (see PDF of the judge's memorandum of decision). In December 2010, the court dismissed the trademark claims as well, finding that Jenzabar had "failed to allege any facts or evidence in the summary judgment record to support a trademark claim" (see PDF of the judge's decision). Jenzabar appealed this decision, but it was upheld by the Massachusetts Appeals Court. (For more details on the Appeals Court decision, see Public Citizen's blog, Jenzabar's Trademark Appeal is Denied.) Jenzabar then applied to the Supreme Judicial Court of Massachusetts for further appellate review of this case; its application was denied.

Having prevailed in court, Long Bow filed a motion for attorneys' fees in May 2013, stating that "[t]his action was a classic SLAPP suit - a suit that is brought not in any realistic expectation of victory, but in the hope that the very expense of litigation might wear down the defendant and force it to negotiate its way out by promising to refrain from future criticism." In October 2013, the Superior Court of Massachusetts granted this motion, making pointed note of Jenzabar's "abuse of process," its "multiple and shifting legal and factual theories," and its "extortionate conduct." The Court awarded fees to Long Bow in the total amount of $511,943.12, stating that:

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... 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. [Read the ruling in its entirety.]

During the course of the lawsuit, Long Bow also posted an online appeal asking for moral support in opposition to "a corporation using its money and its power to stifle debate and suppress the historical record." Several hundred people signed on, including many Chinese students who had taken part in the 1989 protests, as well as a number of Chinese activists, some of whom have been imprisoned by the Chinese government -- among them writers Moli and Wang Lixiong, and artist Ai Weiwei. Students, professors and scholars from over two hundred fifty universities around the world added their support.

For independent coverage of the lawsuit, see the Boston Globe, December 19, 2010: A Victory for Free Speech, the Guardian, Nov. 17, 2009: From Democracy Activist to Censor, the Boston Globe, June 7, 2009: Beijing Lesson Unlearned, The World (from the BBC, PRI, and WGBH), June 4, 2009: A Legal Dispute Over Remembering Tiananmen, the Times of London, May 4, 2009: Tiananmen activist Chai Ling sues makers of film about 1989 protest, the New Yorker, May 7, 2009: The American Dream: The Lawsuit, and the South China Morning Post, June 9, 2010: June 4 Leader Drops Film Lawsuit (the SCMP's headline is misleading; Long Bow never received any communication from Chai Ling or her lawyers indicating that they would drop the lawsuit, and they appealed the court's dismissal of their suit).

Summary of the lawsuit filed by Jenzabar, Inc., Ling Chai, and Robert A. Maginn, Jr. against the Long Bow Group, Inc.

SUMMARY OF LAWSUIT

In May 2007, Jenzabar, Inc., its CEO Robert Maginn, Jr., and its President Chai Ling, filed suit in Boston against the Long Bow Group, claiming defamation and trademark infringement. Specifically, the complaint cited the posting of articles about Chai Ling and Jenzabar on this website and the use of the term "Jenzabar" in the keywords or "metatags" used to index and describe the contents of certain pages of the site. On the first page of their complaint, Chai Ling, Maginn, and Jenzabar claimed that Long Bow was "Motivated by ill-will, their sympathy for officials in the Communist government of China, and a desire to discredit Chai, a former student leader in the pro-democracy movement in China's Tiananmen Square..." In response to the complaint, Long Bow filed a motion to dismiss all claims. In August 2008, the court granted the motion in part and dismissed all of the defamation claims. On the trademark claims, the court recognized that "Jenzabar seems unlikely to prevail on this claim because of the dissimilarity of Long Bow's business," but nevertheless allowed Jenzabar to try to prove its claims.

This page summarizes key aspects of the claims made by the plaintiffs in this lawsuit and the court's ruling. To view the actual filings from the case, including Long Bow's motion for Summary Judgment, please click here.

Defamation

The lawsuit's defamation claim centered on a Boston Globe column about Chai Ling and Jenzabar that was published in 2003 and later excerpted on our website. This column, "American Dream," written by Steve Bailey, included the following quote, which was taken verbatim from papers filed publicly in a lawsuit against Chai Ling, Robert Maginn, and Jenzabar: "Five former executives have sued Jenzabar, including the former chief financial officer [Joseph DiLorenzo], who accused Chai and Maginn of 'a number of unethical, inappropriate, and/or illegal actions.'" The Globe column (and Long Bow's page of excerpts) also contained the disclaimer that "Jenzabar has denied the claims and resolved some of the disputes." In other words, the only specific alleged defamatory statement was in fact made by DiLorenzo during a lawsuit against Jenzabar; the Globe truthfully reported on the statement, and Long Bow, in turn, quoted from the Globe. Both Long Bow and the Globe reported DiLorenzo's accusation as merely an allegation, not as a statement of fact. Long Bow and the Globe also reported that Jenzabar denied the former CFO's claim.

The Globe column not only mentioned lawsuits against Jenzabar, it also discussed Chai Ling's recent activities in the context of her actions during the 1989 protests. In this discussion, the column prominently referenced her portrayal in Long Bow's film, The Gate of Heavenly Peace. The column stated: "Over the years the image of Chai has become decidedly mixed... The harshly critical documentary The Gate of Heavenly Peace captured that emerging view best in an interview that Chai gave in a Beijing hotel room..." The column goes on to quote from the interview. Long Bow first posted the Globe column in 2004, in a section of the website that provides background information about people who appear in the film. The information includes, as much as possible, a follow-up on each character's post-Tiananmen life. Only those viewers who are specifically interested in finding out more about Chai Ling are directed to the subpages on Chai Ling and Jenzabar.

As for DiLorenzo's lawsuit, according to Jenzabar he retracted his allegations in December 2005. DiLorenzo wrote a letter of apology to Chai and Maginn on September 22, 2006. To the best of our knowledge, none of this information was ever published by the Boston Globe or any other media outlet. Jenzabar itself did not inform Long Bow about the retraction and apology until February 2007, via a letter from the company's lawyer, which included the following demand: "Your republication of these statements is defamatory, and we insist that you remove the false and defamatory articles and statements on your Web pages." In response, Long Bow updated and modified the pages containing the Globe column and other information about Jenzabar. The lawyer's letter, fully detailing Jenzabar's point of view, and DiLorenzo's letter of apology, were posted on our website in their entirety. (See Jenzabar's letters to the Long Bow Group.) Nevertheless, Jenzabar proceeded with a lawsuit against the Long Bow Group in May 2007.

Given the timeline of events (that is, the fact that Long Bow posted the column in 2004, when the lawsuit was still active), the court decided that "the question becomes whether Long Bow had any kind of continuing duty to investigate the accuracy of the Boston Globe article, i.e., whether DiLorenzo was still accusing the plaintiffs of inappropriate actions." The court concluded emphatically: "There is no such duty. Jenzabar cannot sustain a defamation claim based on Long Bow's publication of the Boston Globe article." (from the judge's Decision on the Motion to Dismiss)

The defamation allegations went beyond the Globe column. Jenzabar, Chai Ling, and Maginn also alleged that The Gate of Heavenly Peace site "presents a small and misleading sample of articles critical of [Chai Ling's] past, her political activism, and her business ventures." (See this page.) None of these articles were identified in the complaint. Nor did the complaint allege that anything reported in these unspecified articles was untruthful, inaccurate or defamatory. In essence, as Long Bow argued to the court, Jenzabar, Chai Ling, and Maginn were trying to hold Long Bow liable for defamation simply for compiling truthful, non-defamatory articles about Chai's "past, her political activism, and her business ventures." Long Bow argued that such a compilation of critical news articles is fully protected by the First Amendment and cannot be the basis for a defamation claim. The judge's ruling on the Motion to Dismiss focused heavily on the fact that the plaintiffs did not even claim that the articles quoted and compiled on the website were false: "Notably, Jenzabar does not allege that the articles are false. . .. To survive this motion to dismiss, the plaintiffs must allege falsity, which they have not done."

As a result of the court's ruling, all of the defamation claims against Long Bow have been thrown out of the case.

Trademark Infringement

Unfortunately, Jenzabar also attempted to cast its objections to our website as trademark violations. In the complaint, Jenzabar alleged that Long Bow's references to the Jenzabar "Marks" -- i.e., its trademarked name, Jenzabar -- in the keywords or "metatags" used on The Gate of Heavenly Peace website constitute trademark infringement and trademark dilution. Jenzabar claimed that Long Bow by using Jenzabar's trademarks was "diverting consumers who are searching for Jenzabar's products and services to the derogatory content published on the Site."

We take the view, of course, that trademark law does not stretch so far as to squelch the mere reference to a company's name on a website that reports news about the company and its officials, especially when there is no competition involved.

In fact, The Gate of Heavenly Peace website does not use Jenzabar's logo, lettering, or tag line on any of its pages. It simply uses the company's corporate name, Jenzabar, to refer to the company. Moreover, a clear disclaimer on the relevant pages states that the site "is in no way affiliated with or sponsored by Jenzabar, Inc." Even without such a disclaimer, we feel that no reasonable person could believe that our website was sponsored or endorsed by Jenzabar. Nor could anyone conceivably mistake the two companies. As the court recognized: "Jenzabar develops software; Long Bow makes films. A prospective Jenzabar customer might be distracted by Jenzabar's mark appearing on Long Bow's site, but they would not be confused."

The Gate of Heavenly Peace website uses the term Jenzabar in the metatags of pages that specifically cover Chai Ling and Jenzabar. Other metatags on these pages include "Chai Ling," "Gate of Heavenly Peace," and "Tiananmen Square." Likely search terms are commonly inserted into metatags as part of standard HTML coding practices. The term Jenzabar is also used in the filenames of two pages ("jenzabar.html" and "jenzabar_letters_2007.html"). HTML page names often use straightforward terms to identify a page's content. For example, other filenames on The Gate of Heavenly Peace site include "harvard.html," "Newsweek.html," and "latimes.html." We feel strongly that our website's use of the term "Jenzabar" in the metatags or in an html filename is not the kind of "use" to which trademark law applies. We simply use the term "Jenzabar," among other terms, to accurately describe and index the content of that webpage. One can hardly describe the content of a page about Chai Ling and Jenzabar without using the terms "Chai Ling" and "Jenzabar."

Nevertheless, the legal standard that applies to motions to dismiss is very low and requires a court to assume for the benefit of plaintiffs that everything asserted in a complaint is true. In our case, the judge concluded that Jenzabar had met this low standard on the trademark claims. In making her ruling, the judge stated that "Jenzabar has adequately pled the likelihood of confusion element, which is all that is required to survive a motion to dismiss. The trademark claims will stand." However, she also pointedly remarked that "Jenzabar seems unlikely to prevail on this claim because of the dissimilarity of Long Bow's business..."

Jenzabar continued to pursue the trademark claims against the Long Bow Group. During the discovery process, Jenzabar "exhibited utter contempt for this Court's fundamental discovery rules..., resulting in overwhelming substantive prejudice to Long Bow. Beyond plaintiffs' extraordinary disrespect, it is now clear that their lawsuit is nothing more than a vengeful effort to retaliate against Long Bow and an abusive ploy rooted in plaintiffs' disapproval of Long Bow's 1995 documentary film, The Gate of Heavenly Peace." (from Defendant Long Bow Group Inc.'s Renewed Emergency Motion for Relief Due to Plaintiffs' Failure to Provide Discovery - July 9, 2009; see this page for related documents.) In October 2009, Public Citizen, a national non-profit Public Interest Organization, decided to offer legal representation to the Long Bow Group because of the serious First Amendment issues raised by Jenzabar's lawsuit. On October 13, Public Citizen attorney Paul Alan Levy, along with Boston lawyers Christopher Donnelly and Adam Ziegler, served a "Motion for Summary Judgment" asking for the case to be dismissed.

In December 2010, the Court granted the motion for Summary Judgment. In his Memorandum of Decision and Order on Defendant's Motion for Summary Judgment, Massachusetts Superior Court Judge John C. Cratsley noted that "Long Bow uses the Jenzabar mark to refer to the contents of its Site about Jenzabar. Long Bow is unable to discuss Jenzabar in their Site without using the actual name Jenzabar. There has been no evidence in the summary judgment record presented to this Court that Long Bow uses more of the Jenzabar mark than necessary. In fact the mark correctly portrays the content of the web page, the Site, as being about Jenzabar." (p. 11) Judge Cratsley also stated that "Long Bow's use of Jenzabar in its metatags is protected under the nominative fair use doctrine because the plaintiffs have failed to show a likelihood of confusion as to sponsorship or endorsement." (p. 11) He further observed that "Jenzabar has failed to allege any facts or evidence in the summary judgment record to support a trademark claim." (p. 12) Jenzabar is currently appealing this decision.

We believe that, in essence, Jenzabar, Chai Ling, and Robert Maginn, Jr. are attempting to censor The Gate of Heavenly Peace website under the guise of trademark law. Ironically, in public statements promoting Jenzabar, Chai Ling has spoken forcefully about the importance of free speech and the Internet. For example:

"The Internet is a powerful tool for communication and free speech, a technology that knows no country boundaries and empowers people to change... The Internet and technology business can bridge the gap between U.S. and China relations, bringing more freedom to the people of China."
Business Wire, April 13, 1999
"The students in China need to be informed about what's really going on around the world. So, the BBC, Voice of America, Hong Kong TV, new media or the Internet media can help communicate the truth. And the truth will lead to peace!"
Tiananmen 10 Years On, New Perspectives Quarterly, Vol. 16, No. 4, Summer 1999
"The Internet itself is democracy," said Chai Ling, a former student leader in 1989 and now a Web entrepreneur who has started her own Web company, called Jenzabar. "That's why people like us who fought for freedom and democracy in China ten years ago naturally embraced the Internet."
Ten Years Later: Chinese Dissidents Using Net, CNET, June 7, 1999

(See more quotes by Chai Ling on the Internet and freedom.)

It is difficult to believe that a person who spoke so emphatically about the power of the Internet and the value of free expression could now be suing to prevent Long Bow from publishing a website that contains newsworthy information about her and her story.

Jenzabar's lawsuit against Long Bow has been covered by a variety of independent news sources, blogs, and internet and technology news sites, from Ars Technica to the New Yorker. The following are links to some of this coverage.

Independent Media Reports

South China Morning Post, June 9, 2010: June 4 Leader Drops Film Lawsuit
The article notes that "...after becoming a Christian late last year, [Chai Ling] says she's dropping her case.

'After thinking it over, I instructed my lawyers ... to make an offer to Long Bow's lawyers to withdraw the suit,' she said ... 'My decision is motivated by my desire to see God glorified through this, so that more people may come to know him.'

The Long Bow Group said it had no knowledge of an offer to withdraw the lawsuit."
The Guardian, Nov. 17, 2009: From democracy activist to censor?
Jeremy Goldkorn writes, "In a country that calls itself free, money should not be able to buy silence or the alteration of historical records. Intellectual property laws should not be used to suppress free speech."

The Boston Globe, June 7, 2009: Beijing Lesson Unlearned
Yvonne Abraham notes that Chai Ling is "using the justice system to attack the very freedoms for which her fellow students gave their lives."

The World (from the BBC, PRI, and WGBH), June 4, 2009: A Legal Dispute Over Remembering Tiananmen

The Times of London, May 4, 2009: Tiananmen activist Chai Ling sues makers of film about 1989 protest

New Yorker, May 7, 2009: The American Dream: The Lawsuit
Evan Osnos writes, "Now comes word that Chai Ling, the student leader who appeared on television screens around the world as the picture of fragile, furious idealism, is now suing the makers of an award-winning documentary about the Tiananmen Square demonstrations. ...her company's lawsuit accuses them of being 'motivated by ill-will, their sympathy for officials in the Communist government of China, and a desire to discredit Chai....' For the record, to anyone with knowledge of the film, the notion that it is sympathetic to the Chinese government is laughable. But, whatever happens with the suit, it's hard to imagine a more acute measure of how far the student movement has faded into memory."

Internet/Technology News

Ars Technica: Tiananmen Square battle still being fought -- now over meta tags

Internet/Free Speech/Advocacy Sites

Public Citizen
In October 2009, Public Citizen, a national non-profit Public Interest Organization, offered legal representation to the Long Bow Group because of the serious First Amendment issues raised by Jenzabar's lawsuit.

Public Citizen attorney Paul Levy's blogs:

Faulty Trademark Suit Pits Leader of Tiananmen Square Protest Against Makers of Documentary Film About Historic Event

Jenzabar Joins Trademark Abusers Hall of Shame

Jenzabar Tries to Forbid Blogging About Its Abusive Trademark Litigation

Jenzabar "expert witness" claims that Google still uses keyword meta tags

Jenzabar Loses Attempt to Suppress Critical Web Site Through Abusive Trademark Claim

Citizen Media Law Project - Threats Database
The Citizen Media Law Project is jointly affiliated with Harvard Law School's Berkman Center for Internet & Society and the Center for Citizen Media at Arizona State University.

Blogs

Legal/Internet

Techdirt - The Techdirt blog analyzes news stories about changes in government policy, technology and legal issues that affect companies ability to innovate and grow.
Likelihood of Confusion - A blog about trademark, copyright, new media and free speech.

China

The China Beat: The Boston Long Bow Group, Chai Ling and "The Gate of Heavenly Peace": Geremie R. Barmé responds to "China Beat"
Inside-Out China: The Fall of Lady Liberty and Chai Ling's Revenge