A Moron In A Hurry

October 25, 2006

Polluter Intimidates Environmental Group with TM Threat

Filed under: trademark — nick @ 6:27 pm

TXU, accused of being a major Texas polluter, has threatened suit for trademark infringement against Downwinders at Risk, a small Texas environmental group, over the group’s eight foot tall effigy depicting Texas Governor Rick Perry kissing a smokestack covered with the logos of several other Texas polluters.

The TXU mark is the blue one at the top.  It’s so tiny.

Public Citizen is involved in the case and decries TXU’s abuse of trademark law to stifle protected speech (the link also leads to copies of the correspondence between PC, DAR, and TXU).

Since not even a moron in a hurry would think TXU is the source of this protest piece, DAR’s use of the TXU logo should clearly not  be trademark infringement.  From Mattel, Inc. v. MCA Records, 296 F.3d 894, 900 (9th Cir. 2002) (at bottom of page 10488):

The First Amendment may offer little protection for a competitor who labels its commercial good with a confusingly similar mark, but “trademark rights do not entitle the owner to quash an unauthorized use of the mark by another who is communicating ideas or expressing points of view.” L.L. Bean, Inc. v. Drake Publishers, Inc. 811 F.2d 26, 29 (1st Cir. 1987). Were we to ignore the expressive value that some marks assume, trademark rights would grow to encroach upon the zone protected by the First Amendment. See Yankee Publ’g, Inc. v. News Am. Publ’g, Inc., 809 F.Supp 267, 276 (SDNY 1992).  When unauthorized use of another’s mark is part of a communicative message and not a source identifier, the First Amendment is implicated in opposition to the trademark right.”). Simply put, the trademark owner does not have the right to control public discourse whenever the public imbues his mark with a meaning beyond its source-identifying function. See Anti-Monopoly, Inc. v. Gen Mills Fun Group, 611 F.2d 296, 301 (9th Cir. 1979).  (“It is the source-denoting function which trademark laws protect, and nothing more.”).

Dilution works differently and is concerned with free riding on the fame or good will of a well known mark.  However, the Federal Trademark Dilution Act section (A)(4)(B) creates an exemption for “noncommercial use of a mark,” even if dilution exists.  DAR is “diluting” TXU’s mark (ie. using TXU’s trademark to “mischaracterize” it as a polluter), but is doing so in a noncommercial way.  Since DAR’s use is political speech and not commercial, it should fall under the FTDA’s safe harbor.

Via Techdirt.


1 Comment »

  1. Good site! kabababrubarta

    Comment by kabababrubarta — March 26, 2007 @ 8:17 pm

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