It got scant coverage, but a judge who cleared the way for a law firm’s claim against a former associate who’s been trashing the place online could lead to a legal limit on how far ex-employees can go in criticizing their old bosses.
Attorney Thomas Cafferty, known for his defense of major media companies in New Jersey, told U.S. District Court Judge Anne Thompson in Trenton that Andrew Heyburn’s use of the personal injury firm’s name could create a connection in readers’ minds that could hurt business.
More importantly, he noted that Heyburn is violating federal law by trading on the firm’s name to promote his own practice, which turns up on search engines used by people looking for the actual firm.
Thompson agreed, pointing out that Heyburn’s site mentions his own firm, “touts some of [his] accomplishments as a lawyer” and has provided legal advice.
Even if the intent is to criticize, as Heyburn insists, Thompson, one of the most respected — if not THE most respected — of New Jersey’s federal judges, said readers could accept the allegations as true.
Overall, she said, she considered the site a “mix of professional critiques and personal insults.”
This case could go a long way toward determining just how far a former employee can go in bashing his or her former employer — right or wrong — based on motive.
Officially, Thompson said Levison Axelrod could continue to pursue an Anti-Cybersquatting Consumer Protection Act claim, which essentially claims that Heyburn’s sole motive is to mooch off their potential business.
The judge is clearly leaning in the firm’s direction. It could be inferred, she said, that Heyburn — who worked for the firm for six years, ending in 2004 — desired to divert customers from the firm’s site to his site “to promote his own legal services” and “tarnish the goodwill associated with the Levinson Axelrod name.”
Interestingly, an online drama is playing out, thanks to Levison Axelrod’s hiring of a consulting firm that managed to move the law group higher in search standings and push Heyburn’s way back.
Heyburn says the consultant apparently has been seeding positive postings to web under the name Levinson Axelrod with links to the firm’s site: a pro-green living post on the Sierra Club site, for instance, and one on another site that says pop singer Rihanna “looks amazing” in a topless photo on the January 2010 cover of GQ magazine.
Licenses have been lost over such approaches, Heyburn said, noting that Levinson Axelrod’s site can be considered “abandoned” by such horseplay.
Not that Heyburn is a choir boy.
Heyburn lifted promotional videos from the firm, re-dubbed them — in a “What‘s Up, Tiger Lily” style — and then posted his “Mock-U-Mentaries” on YouTube. Levinson Axelrod got them removed, asserting copyright violation.
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