Were it not for the strong defense provided to us by attorney, Jerry Levine, who represented us pro bono, we might have been forced to shut down before we had a chance to introduce ourselves to those who care about PJM. We can’t thank him enough.

Thanks also to Andy Sellars and the Online Media Legal Network at Harvard University, who connected us with Jerry. OMLN finds lawyers willing to provide free and reduced fee legal assistance for online journalists. If you worry that the demise of the newspaper industry threatens our democracy, this is an organization truly worthy of your support.

Below is a summary of the legal position Jerry laid out in a letter to PJM in April:

PJM Insider’s use of “PJM” in our title is protected by both nominative fair use and the news reporting/news commentary privilege, among other rights. Courts generally recognize three elements of nominative fair use: (1) the trademark owner, product, or service in question must not be readily identifiable without use of the trademark; (2) the defendant must use only as much of the mark as is necessary to identify the trademark owner, product, or service; and (3) the defendant must do nothing that would suggest sponsorship or endorsement by the trademark owner.

PJM Insider is a news service focusing solely on PJM. There is no way to identify PJM Interconnection without directly referring to its name. PJM Insider uses only that much of the mark as is necessary to identify that it is discussing PJM Interconnection. Finally, PJM Insider specifically declares, in multiple locations on the website and in every communication, that it is neither sponsored, affiliated nor endorsed by PJM Interconnection.

Trademark law does not let a trademark owner exert its trademark rights to stop news reporting about it or its products or services. There are several legal rationales for this result: there is no risk of confusion between the news source and the trademark owner; nominative fair use protects this use of the trademark owner’s mark; and the federal dilution statute expressly exempts “news reporting and news commentary” from a dilution claim. See 15 U.S.C. § 1125(c)(3)(B). Furthermore, trademark law does not permit a trademark owner to use its trademark rights to silence commentary and criticism. Congress has created a categorical exemption for “criticizing . . . or commenting upon the famous mark owner or the goods or services of the famous mark owner.” 15 U.S.C. § 1125(c)(3)(A)(ii).

We also pointed out to PJM that many trade publications incorporate the name of the organization that is the focus of their coverage without implying any endorsement or official connection. For example:

• Inside FERC, published by Platts, has covered the Federal Energy Regulatory Commission for more than 25 years and no one in the industry confuses it with the commission itself.  Platts also publishes a newsletter covering the Nuclear Regulatory Commission, Inside NRC, also without confusion.
• SNL Financial LC publishes two publications covering FERC, FERC Power Report and FERC Gas Report.
• Inside Washington Publishers publishes several newsletters whose titles incorporate the subject of their coverage, including: Inside EPA, Inside the Pentagon, OSHA Online and FDA Week.
• Congressional Quarterly has been covering the U.S. House and Senate since 1945.

We are following in this tradition of focused, institution-specific coverage. PJM’s lawyers say our situation is different because PJM is not a government agency and has trademarked its name.

It is true that PJM and other regional transmission organizations are not government agencies. But as Michael H. Dworkin & Rachel Aslin Goldwasser wrote in the Energy Law Journal, there are several lenses through which to view RTOs: “as agents of the FERC, as monopolists or private regulated entities, as `hybrid’ organizations, as similar to commodities trading markets, as agents of some of the market participants, and as planning processes.”

They elaborated: “RTOs set rules approved by the FERC that determine which plants will be turned on and off, they make short and long-term planning decisions, they ensure reliability, and they monitor the market for abuses. The FERC, through its general orders and rulings on specific issues, sets the parameters for RTO actions and implements the FERC’s directives. In this sense, an RTO is a regional representative of the FERC, acting as an agent for non-regional governmental sectors.” (Emphasis added.)

As a FERC-authorized RTO, PJM Interconnection serves a central role in the both the reliability and the cost of electric service for more than 60 million people in the MidAtlantic U.S. Like FERC itself, it is similarly deserving of coverage by an independent publication.