Abusing the Trademark Laws to Suppress Free Speech

[David Farber <dave () farber net>]

Begin forwarded message:

From: Paul Levy <plevy () citizen org>
Date: October 24, 2006 2:25:57 PM EDT
To: dave () farber net
Subject: Abusing the Trademark Laws to Suppress Free Speech

Somehow we have got to find a way to give trademark lawyers more of a  
disincentive to trying to suppress free speech by the simple method  
of sending threatening letters.  We are thinking of creating a  
“trademark hall of shame” featuring  lawyers who engage in such abuses.

A small environmental group in Texas with the cute name of  
“Downwinders at Risk” created a large styrofoam effigy of Texas  
Governor Rick Perry kissing a dirty smokestack that emblazoned with  
logos of several Texas polluters.  (A photo of the effigy can be seen  
on the web site of the Dallas Morning News, at http:// 
www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/DN- 
perryfloat_24tex.ART.State.Edition1.3e68694.html.)  After the effigy  
was displayed outside a gubernatorial campaign debate, one of the  
polluters, TXU, threatened to sue for trademark infringement and  
dilution unless DAR removes its logo from the effigy.

We have explained to the lawyer who signed this threat that citizens  
ARE allowed to use logos to depict companies they want to criticize,  
and that in any event the trademark laws don’t apply given the  
completely noncommercial use and the utter impossibility that anyone  
would be confused into thinking that TXU sponsors DAR’s message.  His  
response was to tell me that he would “look forward to meeting [me]  
personally” * I assume this was the equivalent of, “I’ll see you in  
Court.”  I have my doubts.

Copies of the relevant correspondence can be found at the end of this  
release.

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation
> > > Robert Yule 10/24/06 1:48 PM >>>
PUBLIC CITIZEN PRESS RELEASE

For Immediate Release:        Contact:  Paul Alan Levy (202) 588-1000
Oct. 24, 2006                                 Robert Yule (202) 588-7703

Public Citizen Defends Environmental Nonprofit from Texas Energy  
Company’s Trademark Lawsuit Threat

Downwinders at Risk Challenges TXU’s Use of Trademark Infringement to  
Stifle Political Free Speech

WASHINGTON, D.C. - In a letter sent today to TXU Corp., Public  
Citizen defended the free speech rights of a Texas environmental  
nonprofit organization against trademark infringement lawsuit threats  
by the energy giant.

TXU objected to the group Downwinders at Risk’s use of the TXU logo,  
along with the logos of other pollution-causing corporations, on a  
float depicting Gov. Rick Perry kissing a dirty smokestack. The float  
was part of a protest to represent the close political and financial  
relationship between the governor’s office and the energy industry.  
TXU threatened to sue the organization for trademark infringement and  
dilution unless it removes the logo from its float and any published  
materials.

To prove trademark infringement, companies must show that use of  
their logo was commercial in nature and caused consumer confusion. In  
this case, the logo was part of a political protest by a nonprofit  
organization not involved in commercial activities and clearly not  
affiliated with the company it criticized. 	
        
“TXU’s claim that this grassroots group must ask the company for  
permission to depict and criticize it is patently absurd,” said Paul  
Levy, an attorney for Public Citizen defending Downwinders at Risk.  
“The company’s real motive is to use the threat of costly and  
intimidating lawsuits to stifle the political participation and free  
speech of citizens who are legitimately concerned about the effects  
of TXU-caused pollution.”

Downwinders’ float, titled “Rick Perry’s Smoke Stack Love World  
Tour,” will continue to appear at Perry campaign events beginning  
Wednesday, Oct. 25 in Dallas.

Public Citizen has a strong record of defending the First Amendment  
rights of ordinary citizens against trademark threats made by large  
corporations. Dallas civil liberties litigator Michael Linz serves as  
co-counsel for Downwinders at Risk.

To read TXU’s demand letter, visit http://www.citizen.org/documents/ 
txudemandletter.pdf.
To read Downwinders’ response, visit http://www.citizen.org/documents/ 
darlettertotxu.pdf, and to view Public Citizen’s response, visit  
http://www.citizen.org/documents/responsetotxu.pdf.

###

Public Citizen is a national, nonprofit consumer advocacy  
organization based in Washington, D.C. For more information, please  
visit www.citizen.org.




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