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.

RTO Insider is an independent publication of RTO Insider LLC. It is neither connected with nor endorsed by PJM Interconnection, LLC. 

By Rich Heidorn Jr.

We hadn’t even published our first article when the cease and desist letter arrived via email in February.

PJM Interconnection, LLC was unhappy that we had registered the website PJMInsider.com. We have a trademark on those three letters, said PJM’s lawyers. No one else can use them.

We disagreed, and continue to disagree to this day about our legal right to use PJM to describe our coverage.

But last week, we signed a settlement agreement with PJM agreeing to change the name of our publication to RTO Insider — our corporate name — to avoid PJM’s threatened trademark infringement suit.

All of the lawyers we consulted told us we would likely prevail if the case went to court. Unfortunately, as a new publication — funded by savings, credit cards and sweat equity — we didn’t have the $60,000 we were told it would cost to contest PJM’s suit. So, sadly, we were forced to make a strategic retreat.

PJM officials will tell you their stance was solely motivated by their obligation to “protect” their trademark from infringement. While it is true that trademark holders can lose their rights if they do not defend them, it is also true that the media are treated differently under trademark law.

As much as we tried, we could never come up with a better title for our publication than PJM Insider. And we still haven’t come up with any other way to explain — in just a few short words — what we’re covering than to mention “PJM” in the title.

We had no intention of tricking readers into thinking we were connected with PJM Interconnection. Indeed, our value proposition from the beginning has been our independence — both from individual stakeholder groups and from PJM itself. We have lived up to our word by scrupulously including disclaimers on all of our publications and literature.

Our lawyer explained all this in a letter to PJM. He also explained why PJM’s legitimate intellectual property concerns do not allow it to censor the free press.  (See sidebar, Trademark Law and the News Media.)

We hoped PJM would be satisfied with that. We were wrong. On June 6, PJM emailed us a draft of the lawsuit they said they planned to file the next day.

As you will see below, the suit is both hilarious — because the claims are so ludicrous — and infuriating, because PJM was able to get its way solely because it had a bigger bankroll.

We expect this to be about the last time we write about this dispute. But we do feel it important that PJM’s members, who are supposed to run the organization, and PJM’s ratepayers, who pay for it, be aware of the organization’s bullying behavior.

So why did PJM hire an expensive Philadelphia law firm to go after us? Well, PJM and I have a history. As a member of the enforcement staff of the Federal Energy Regulatory Commission, I led an audit of PJM with two other staffers.

During that audit, I met many of PJM’s management and dealt almost daily for months with Chief Financial Officer Susanne Daugherty, who put up with our nettlesome questions with far more patience and grace than most could have mustered. I have tremendous respect for Susanne and most of the people I dealt with at PJM.

Due to FERC rules on the confidentiality of audits, I can’t explain exactly why this experience may have factored into the trademark dispute. The audit report, as released by FERC, didn’t disclose any major problems.

But it’s clear that while PJM’s lawyers claimed to be concerned that our publication could be confused with PJM, it is actually our independence that frightens some in the organization.

We’ll let you be the judge of whether PJM’s suit had merit. Below are some of the more entertaining claims, along with our responses. The full draft of the suit can be downloaded Insider-Draft-Complaint-with-Exhibits-6-6-13.

Pgh. 16: “…The title design of RTO’s publication, “PJM Insider,” is visually similar to the title design of PJM’s publication “Inside Lines,” with the title of both publications appearing on the left in block lettering accompanied by a logo image of power transmission lines on the right.”

We plead guilty to a lack of originality. Sadly, the iconography of the electric power industry is mostly power lines and cooling towers. Dozens of companies and websites employ such images.

But did we copy PJM’s look? Uh, no. The logo was designed by my computer-savvy 14-year-old stepson. And he had never seen PJM’s website before.

Pgh. 30: “As a result of RTO’s acts of infringement, PJM has suffered and continues to suffer damage and irreparable harm…”

Last time we checked, PJM was a monopoly. There’s nothing we could do or write that would give ratepayers in the 13 states within the PJM footprint the ability to choose another electric grid.

In 2012, PJM had 816 members. Current membership is 847. That’s an increase of more than 30, so it doesn’t appear we’ve hurt PJM here.

Pgh. 33: “PJM does, however, object to any implication by RTO that the company or the publication is authorized and/or sponsored by, or in any way related to PJM.”

So do we.

We didn’t launch PJM Insider as a “gripe site.” Most of what we publish is just-the-facts ma’am coverage of meetings and issues, not criticism.

But no one who reads our coverage of the PJM annual meeting or the Board of Managers election could confuse us with a house organ. See also our coverage of the uproar over the board’s plan – since rescinded — to get rid of Market Monitor Joseph Bowring and Monitoring Analytics.

We had to reproduce this paragraph of the suit so readers would know we weren’t making it up. State utility regulators are accused of many things, but we’ve never heard anyone say they can’t read. Moreover, the “consumers” PJM refers to in the same paragraph are people who work for utilities, electric cooperatives, attorneys, electric marketers — hardly an unsophisticated audience.

The fact is, anyone who spends more than a minute with our publication or on our web site will see our ubiquitous disclaimers.

Pgh. 51: “Because of the wide public recognition in the energy sector of PJM’ s registered mark, it is likely that the consuming public who encounter RTO’s use of the domain name and URL www.pjminsider.com/ will be confused, mistaken, or deceived into believing that RTO’s goods and services originated from, or are sponsored, endorsed, or approved by PJM.”

PJM apparently doesn’t like it that when people do a Google search for information on PJM, we also appear (see screenshot). We didn’t get our Google ranking based on the name of our site. We got it because we’ve written nearly 200 stories on PJM since February. People may have looked at us because the word PJM told them what we cover — but they only came back if they found value in what we are writing. And, as you can see, our disclaimer is right there.

PJM’s trademark covers:

• Bulk electrical market services in the nature of commodity brokerage and price quotations in the field of electricity.
• Management, administration, and operation of electricity transmission, power and energy markets; auction and trading services in the electricity transmission, power and energy markets; and provision of information related thereto.

We’re not running energy markets or running an electric grid— that’s PJM business.

Are we competing with PJM regarding “the provision of information related thereto”? For that, we make no apologies. Transmission of electricity may be a natural monopoly. Information about PJM shouldn’t be.

PJM members and stakeholders need an independent news source to help them keep track of the myriad issues and to serve as an historical record of previous stakeholder actions. Hundreds of you tell us every week that you agree, by opening our emails and visiting our website.

What happens next?

Over the next couple months we will be moving our website to a new URL (www.rtoinsider.com) and changing our email addresses accordingly. Nothing else will change.

We will continue to push for more transparency in the organization. We think it’s outrageous that the Board of Managers rarely meets in public, and that PJM refuses to disclose board members’ compensation. And we think section 4.5 of PJM’s Code of Conduct — which bars us from quoting members by name without their permission at all meetings but those of the Members Committee and Markets and Reliability Committee — is unnecessary and only feeds the distrust of critics who deride the organization as a “cartel.”

We will continue to be in the room when you can’t be – and asking the questions that need to be asked.