Trademark rights, speech rights

Public Citizen:

A federal judge today upheld a Georgia man’s First Amendment right to criticize Wal-Mart’s business practices by using satire to compare its destructive effects on communities to both the Holocaust and al-Qaeda terrorists.In rejecting the company’s claim of trademark infringement, the U.S. District Court for the Northern District of Georgia in Atlanta found that Charles Smith’s parody Web sites (www.walocaust.com and www.walqaeda.com) and related novelty merchandise were protected speech and that a reasonable person would not confuse their use with Wal-Mart’s legitimate trademarks. The court also rejected Wal-Mart’s claim that it has trademark rights in the “smiley-face” that Smith used in one of his parodies.

Public Citizen and the American Civil Liberties Union of Georgia Foundation defended Smith after Wal-Mart sued the Conyers, Ga. man in 2006, claiming he infringed on its trademark by creating parody logos and Web sites built around the “Walocaust” and “Wal-Qaeda” concepts, including the image of an eagle clutching a yellow smiley face, similar to the one Wal-Mart uses in advertising. Smith also put the design on T-shirts, bumper stickers and other items that he sold on CafePress.com.

Judge Timothy C. Batten Sr.’s decision reaffirms an important point of trademark law – that even though a parody is placed on a T-shirt and sold, it nevertheless represents non-commercial speech that is fully protected by the First Amendment and, thus, is not a proper basis for a trademark action, said Paul Alan Levy, a Public Citizen attorney, who represented Smith along with Gerald Weber of Atlanta.

Sounds pretty good from a free speech perspective.  Pretty bad from a litigation strategy perspective, for Wal-Mart, which has inevitably driven more traffic to these over-the-top, tasteless and basically gross websites.  Naturally Wal-Mart did not expect Smith to put up a fight, or to find someone who would help him to do so.

That is increasingly a bad assumption to make, thanks largely to the Internet.

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Ron Coleman

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