A federal judge today upheld a Georgia manâ€™s First Amendment right to criticize Wal-Martâ€™s business practices by using satire to compare its destructive effects on communities to both the Holocaust and al-Qaeda terrorists.In rejecting the companyâ€™s claim of trademark infringement, the U.S. District Court for the Northern District of Georgia in Atlanta found that Charles Smithâ€™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-Martâ€™s legitimate trademarks. The court also rejected Wal-Martâ€™s claim that it has trademark rights in the â€œsmiley-faceâ€ 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 â€œWalocaustâ€ and â€œWal-Qaedaâ€ 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.â€™s decision reaffirms an important point of trademark law â€“ 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.