OK, here's a legal opinion on parody as protected free speech:
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Source for the following: phillipsnizer.com
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Courts have noted that parodies are "a form of artistic expression" entitled to broad protection under the First Amendment. (21) Parodies involving trademarks thus require a delicate balancing of the parodistic's and public's interest in expression and the interests protected by the trademark laws.
Complicated Balancing
Under the Dilution Act, this balancing is further complicated by the fact that the trademark interests protected are often those of the individual trademark owners rather than that of public in being protected from deception. Further, the legislative history of the act which suggests that parody is only exempt in the context of noncommercial "uses" is likely to cause courts difficulty in discerning the scope of the new restriction.
In supporting the passage of the Federal Trademark Dilution Act before the House of Representatives, both Rep.Carlos Moorehead, R-Calif., and Sen. Orin Hatch, R-Utah, stated that "[t]he proposal adequately addresses legitimate first amendment concerns espoused by the broadcasting and the media. The bill would not prohibit or threaten noncommercial expression, such as parody, satire, editorial, and other forms of expression that are not a part of a commercial transaction." (22) This begs the question whether a parody that comprises part of or initiates a commercial transaction, and which is not false, deceptive and misleading is proscribed.
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Theodore C. Max is a member of the New York law firm, Phillips Nizer Benjamin Krim & Ballon LLP. He is the international Articles Editor of The Trademark ® and has written and lectured extensively on intellectual property law issues. The author acknowledges the assistance of John F. Wilk, an associate at Phillips Nizer.
-FOOTNOTE 1-
Federal Trademark Dilution Act of 1995, P.L. 104-98 Stat. 985.
-FOOTNOTE 22-
Cong. Rec. December 12, H.R. 14317 ; Cong. Rec. December 29, 1995, s. 19310.
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The following talks specifically about the internet. The source was domain-name.org, and it was published in 1997, a year after the anti-dilution act was signed.
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The second principle is that trademarks should enjoy no greater protection in cyberspace than in physical space. The goal is to preserve not only the traditional protections of trademark rights, but also the carefully created limits, exceptions and defenses to trademark use. In the U.S. and in other countries with well-developed trademark law, it is recognized by legislators and courts that trademark protections involve a difficult balancing act: protection for the marks by which companies identify their goods and services and the right of all people to use the common, ordinary words of their language and their last names and initials to identify and describe the full range of their activities. In the U.S. was decided to allow companies to register common, ordinary words as trademarks provided those words were not generic or merely descriptive of the good and services. It was considered inherently unfair to allow a single company the sole right to use a word that was common or central to all the goods or services in its class, for example milk, nails or wool. For those registering these words in a manner which was not generic or descriptive, such as "Au Bon Pain," for a bakery/restaurant that specializes in good breads but serves many other types of food, trademarks were never intended to remove the adjective "Bon" or good and the noun "Pain" or bread from commercial use by bakeries (who could perhaps not register "bread" because it would be descriptive). Similarly, defenses to trademark infringement have been carved out by the courts for those who want to criticize, comment on or parody well-known trademarks.
Saturday Night Live may parody a company's commercial and make reference to its goods or products and their shortcomings. While these uses of trademarks are not favored by large corporate trade holders, they have been found to be fair, legitimate and even favored uses of trademarks by the courts as protections of robust free and political speech. Future Internet policies vis-a-vis trademarks must preserve, not diminish, these hard-fought rights for the entire community to use basic words and phrases. In particular, we note that the principles for resolving conflicts are well established in the U.S. and all countries with well-developed trademark law. In the United States, a person may be found guilty of trademark infringement if he shall:
... use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection wit which such use is likely to cause confusion, or to cause mistake, or to deceive." 15 U.S.C. Sec. 1114 (1)(a).
The operative words are "use in commerce" in a way which "is likely to cause confusion," mistake or deception. Even under the new Trademark Anti-Dilution Act of 1996, a likelihood of confusion must be shown. Thus, since mere registration of a domain name provides no indication of use whatsoever, registration cannot be the basis for suspension or revocation of a domain name on trademark infringement allegations. Similarly, the mere fact that a corporation holds a trademark for the word "roadrunner" on a cartoon character should have no effect on the ability of an Internet Service Provider to call itself Roadrunner, Inc., and to register roadrunner.com. without further showing of intent or likelihood to cause confusion.
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Sounds like we're on pretty solid legal footing. Agreed?
- Jeff |
