I intervene in SanMedica v. Amazon to disclose clickthroughs

Kind of a busy day.  With the invaluable help of Public Citizen, I filed a motion to intervene and unseal in the SanMedica case, in which the court redacted the number of clickthroughs received by Amazon as a result of its ads using the plaintiffs' trademark, depriving us of the ability to understand the meaning of the case.  Here is the Public Citizen press release:

Secret Data in Trademark Infringement Lawsuit Against Amazon.com Should Be Unsealed, Public Citizen Tells Court Case Decided Based on Sealed Evidence; Key Material Blacked Out in Court Decision May 26, 2015
Contact: Scott Michelman (202) 588-7739 Angela Bradbery (202) 588-7741

SALT LAKE CITY – The First Amendment requires a court to make public the key facts underlying its decision to permit a trademark lawsuit against online retail giant Amazon.com to proceed, Public Citizen argued today in a motion filed in federal district court (PDF) in Utah. The motion, filed on behalf of Georgetown Law professor Rebecca L. Tushnet, an intellectual property expert, seeks to unseal the rationale for the court’s partially blacked-out March 27 decision and see the unedited arguments that led to that decision. In the underlying case, SanMedica International and Western Holdings sued Amazon, alleging that Amazon drew users to its own site by wrongfully continuing to advertise the plaintiffs’ product SeroVital (a dietary supplement) after Amazon stopped offering the product for sale. As a result, according to the lawsuit, Amazon used the product’s ads to acquire customers that should have gone to the plaintiffs. In a decision filed under seal on March 27 and then released to the public on April 15 with key portions blacked out, the district court permitted the case to proceed. The parties settled the same day that the public version of the decision was released.

“The district court’s decision relied heavily on the numbers of ads Amazon ran, the number of customers who clicked on them and the percentage of those customers who bought products from Amazon,” said Scott Michelman, the Public Citizen attorney who represents Tushnet. “But all of the key numbers are blacked out, so neither the public nor future litigants can know what the threshold is for a valid claim. The First Amendment right to access court records exists so that the public can know the law and how the courts arrive at their decisions.” Public Citizen’s motion targets not only the court’s opinion but also a series of court papers that the parties filed with key portions redacted. The parties did not oppose each other’s requests to file under seal, the motion notes, and the district court granted each request quickly and without explanation. The district court’s partially blacked-out ruling described its decision as a “close” one. But its reasoning is obscured by redactions, Public Citizen explains. For instance, the court writes, “[T]he focus is ... on the [redacted] percent rate that consumers were lured to Amazon’s website. [Redacted] percent, although a relative[ly] small number, is not so insufficient to suggest that there was no likelihood of confusion.”

“A key strength of our adversarial legal system is that we can learn the boundaries of the law from past cases,” Tushnet said. “This is an important case for the development of the law. If key facts about the claim can be kept secret, trademark law risks being different for every litigant, which could produce unfair and arbitrary results.” Tushnet also seeks other blacked-out material relevant to the summary judgment motions, including how much money the plaintiffs sought in damages and information about SeroVital itself. Some of the blacked-out material appears to relate to the inner workings of Amazon’s ad-purchasing system; Tushnet is not seeking that material, however, because it was not relevant to the court’s decision. The case is SanMedica International v. Amazon.com in the District of Utah.

Intellectual property lawyer Marian J. Furst of Salt Lake City is co-counsel for Tushnet. The motions seeking to intervene (PDF) and unseal (PDF) the documents are available here.