Eric Goldman at the Technology & Marketing Law blog recounts a hysterically misguided ruling in Colorado, which holds a hospital liable for trademark and copyright infringement because they mention the ranking they received from a health quality website.
You can’t copyright a number
Imagine enjoining rock bands from saying Billboard ranked them #1, because that ranking “#1” is copyrighted. Or a publisher being unable to refer to their New York Times books ranking.
What’s the creative expression captured in a numeric rating? Sorry, there isn’t any. The formula may be a creative expression, but the result is just a number.
You can use trademarks in commercial speech
More preposterously, the judge concluded that in citing the source of the ranking, the hospital mentioned the plaintiff’s trademarked name, and so infringed the mark. This would be like saying that if I won an Oscar, I couldn’t mention it without the Academy of Motion Picture’s permission.
Anyway, trademarks absolutely may be used in factual commercial statements. Is there an implied endorsement by doing this? Well, yes. They are rankings after all.
This ruling would blot out substantial portions of speech by mistakenly extending copyright and trademark far beyond their intended purposes. Rather than protecting expression and preventing confusion about the source of goods, the ruling would interrupt efficient and truthful speech.