New Trademark Law Might Restrict Free Speech

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By: Steve Yahn

This is a big wake-up call for defenders of free speech in the United States, an urgent one, and worrisomely little known.

Embedded deep in H.R. 683??The Trademark Dilution Revision Act,? which awaits what may well be a last look in the U.S. House of Representatives before being signed into law by President Bush?is language that would remove key free-speech protections that have been part of U.S. trademark law since 1996.

With only the most minimal notice in the mainstream press, the bill as it currently stands would remove three exceptions from part of the present trademark law:

–News reporting and commentary.

–Fair use.

–Non-commercial use.

Elimination of the news reporting and commentary protections would overnight put newspapers at much greater risk of trademark infringement actions being brought against them, for everything from a columnist?s or editorial writer?s ill-received reference to a company?s trademark, to, say, a news photograph of a homeless person?s shopping cart parked in front of a row of gleaming, readily identifiable new-model cars at the dealership of a well-known automaker.

Paul Alan Levy, attorney at Washington, D.C.-based Public Citizen Litigation Group, notes that when the foundational 1946 Lanham Act trademark provisions were amended in 1988 and 1996, Congress was ?acutely? aware of the constitutional problems (under the First Amendment) that would arise if the Lanham Act provisions were extended to non-commercial speech.

These protections for newspapers and other media entities, plus a host of freelance writers, photographers, illustrators, and other artists, would be replaced with the prospect of complicated?and invariably costly?defenses that would have to be mounted in any trademark infringement case.

Rep. Lamar Smith (R-TX), the sponsor of H.R. 683 who currently is reviewing a revised Senate version of the bill: ?This bill will clarify the rights of trademark holders and eliminate unnecessary litigation.?

But that?s a line of thinking viewed with skepticism by artist Don Stewart?not to mention such groups as the Professional Photographers of America, the Electronic Frontier Foundation, the American Library Association and National Video Resources, among others.

Stewart?a medical doctor turned artist (he interned at the Mayo Clinic before turning to doing visual-pun ?composite drawings?)?was enjoying a growing following, especially on the Internet, for a drawing of Volkswagen?s “Beetle? that was a rendering of the car made up of various kinds of beetles, butterflies and other bugs.

But Stewart?s salad days were spoiled overnight in early January when Volkswagen?s U.S. attorneys?Howard, Phillips & Andersen of Salt Lake City?slammed him with a cease and desist letter threatening a suit for damages.

You can imagine how Stewart, not yet in the same rank with Andy Warhol, felt about that.

Luckily for Stewart, a feisty resourceful businessman as well as artist, he found top-notch pro bono legal help. His legal team responded to an exploratory e-mail message from Volkswagen?s counsel with a tidal-wave of legal precedents that, to say the least, had to have let more than a little air out of VW?s tires.

That?s the last Stewart or his attorneys have heard from Volkswagen.

It is just this Big Guy/Little Guy scenario that opponents of H.R. 683 are deeply concerned about.

Public Knowledge?a Washington, D.C. advocacy group working to defend consumers? rights in the digital age (its board includes the likes of former Federal Communications Commission Chairman Reed E. Hundt)?says it fears that the bill ?could negatively impact free speech, small business commercial speech, and repurpose traditional trademark law to protect business interests instead of consumers.?

Public Citizen?s Paul Alan Levy, says, ?The ultimate question I keep coming back to is, what harm does it do to apply a defense for ?news reporting? or ?fair use? to infringement claims? I must say, I do not get it.?


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UPDATE:

There has been heated reaction to this column over the past week. For readers’ reactions, go here and here

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