[Infowarrior] - First DMCA 2.0, now H.R.683 and trademarks

[Richard Forno]

New Trademark Law Might Restrict Free Speech
http://www.editorandpublisher.com/eandp/columns/shoptalk_display.jsp?vnu_con
tent_id=1002384406

By Steve Yahn 

NEW YORK (April 22, 2006) -- 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‹³The Trademark Dilution Revision Act,² 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 columnist¹s or editorial
writer¹s ill-received reference to a company¹s trademark, to, say, a news
photograph of a homeless person¹s 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 ³acutely² 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: ³This bill will clarify the rights of
trademark holders and eliminate unnecessary litigation.²

But that¹s 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 ³composite drawings²)‹was enjoying a
growing following, especially on the Internet, for a drawing of Volkswagen¹s
"Beetle² that was a rendering of the car made up of various kinds of
beetles, butterflies and other bugs.

But Stewart¹s salad days were spoiled overnight in early January when
Volkswagen¹s 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 Volkswagen¹s counsel with a tidal-wave of
legal precedents that, to say the least, had to have let more than a little
air out of VW¹s tires.

That¹s 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
consumers¹ 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 ³could negatively impact free speech, small business commercial
speech, and repurpose traditional trademark law to protect business
interests instead of consumers.²

Public Citizen¹s Paul Alan Levy, says, ³The ultimate question I keep coming
back to is, what harm does it do to apply a defense for Œnews reporting¹ or
Œfair use¹ to infringement claims? I must say, I do not get it.²

Steve Yahn (letters at editorandpublisher.com) is also co-author of E&P's
monthly SAGE Advice column.