Free Trademark Search and Court Records Services Offer Benefits But Also Raise Questions
By now you’d have to be living under a rock not to have some familiarity with the challenges that the Internet, with its typically-free, open-to-anyone culture, can pose to services and information that have traditionally been provided for payment or on a restricted access basis. Law generally – and IP litigation in particular – is no exception.
Recently, two new free, Internet-based services – Trademarkia and RECAP – have emerged that target subjects of interest to IP litigators.
Trademarkia.com offers free trademark searches online, billing itself as “the largest, most accurate, and most complete free search engine for U.S. federally registered trademarks on the Internet” and explaining that it “provide[s] up to the minute contextual information about the current use of interesting business names, slogans, and logos through pictures, commercials, and conversations from Flickr, Google, Youtube, and Twitter for each U.S. trademark filed in with the United States Patent and Trademark Office (USPTO) since the year 1870.”
Trademarkia.com aims to make money from both the usual advertising sources and from providing services related to filing trademarks. It also lists IP lawyers, together with the trademarks with which they’re associated (see an example for my blog colleague Rob Brooke here) and has an “Ask a Trademark Expert” section that it explains “is a collaborative community where individuals are able to exchange ideas and opinions on legal or business-related questions.”
For those in the legal profession, Trademarkia.com may be fun and is certainly useful as a quick reference tool. The site does not appear to provide detailed information about what Trademarkia.com searches, how the company’s information is updated (akin to the source information that Lexis and Westlaw provide on their databases), and how it compares to established trademark search services, however. In the absence of such information, it is difficult to imagine careful practitioners relying on Trademarkia.com for more than recreational or quick reference use. And any careful practitioner also ought to check out Trademarkia.com’s Terms and Conditions and Disclaimer page, to which one supposedly agrees by using the site.
RECAP also aims to improve access to public materials, but it does so in a different way and for different purposes.
RECAP is a project of the Center for Information Technology Policy at Princeton University and is designed to harness users’ voluntary contributions in order to improve public access to the documents contained in PACER, the federal courts’ electronic records system.
RECAP works through a browser plug-in for Firefox that works only when you are accessing PACER. RECAP does not work when you log in as an attorney to ECF (electronic filing), and at present, it does not work with other web browsers (although the site makes RECAP’s programming code freely available and welcomes help translating the plug-in to work with other browsers).
When you access PACER, RECAP identifies which PACER documents are already in RECAP’s database and offers them to you free. If you buy a document from PACER that RECAP doesn’t have, the document is uploaded to RECAP so that future searchers have free access to it.
RECAP’s About page is refreshingly straightforward and detailed about its goals and legal and privacy concerns.
Regarding privacy, RECAP’s About page explains that the documents collected by RECAP are not accessible or searchable outside of PACER “because of ongoing privacy concerns related to attorneys who failed to redact personal information.” The Privacy Policy has details on how RECAP works and how it protects user information.
Regarding copyright issues, its site explains that court-created documents are in the public domain, and it expresses a hope that RECAP’s redistribution services will be found legal with respect to documents filed by third parties. It notes that “a prominent legal scholar” informed RECAP that “he thought redistributing copyrighted court documents was legal under copyright’s fair use doctrine” but acknowledges there’s little case law on point and links to another site, from which one can find out that Lexis and WestLaw have already drawn copyright complaints from lawyers for making briefs available.
RECAP’s goals may be laudable, but it certainly raises both legal and practical questions. How will the law treat redistribution of briefs and other filed materials? Is there a difference between redistribution for profit (Lexis and WestLaw) or for the public good (RECAP)? Will law firms prohibit use of RECAP?
Whether or not either cements a place in the legal industry, Trademarkia.com and RECAP deserve praise for innovation and for raising interesting questions.
Great article. You forgot www.FreeCourtDockets.com, which allows anyone to obtain Pacer dockets for free. No Pacer account or FireFox needed.