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Clash of the Anti-Hillaristas

It is always funny when rival political factions get into trademark disputes instead of letting their ideas compete in the marketplace. That usually happens with opposing political factions. See, e.g., Hypocrites for Community Values Lose Round One.

In a new twist, we see two groups with a common interest in a trademark spat.

Apparently the world just ain’t big ’nuff for two anti-Hillary groups.

In this corner, Citizens United

The descriptively named “Citizens United” is the organization that produced the recent right-wing anti-Hillary movie, Hillary, The Movie. Trailers are here.

A federal court recently ruled against Citizens United in holding that Hillary: The Movie was subject to campaign finance laws.

Lawyers for the group had argued that its 90-minute “Hillary: The Movie” was no different from documentaries seen on television news shows like “60 Minutes” and “Nova.” That prompted skepticism and, at one point, outright laughter from the judges at a hearing last week. (source)

A visit to Citizens United’s website leaves the viewer wondering if it is a Stephen Colbert engineered spoof. It isn’t.

And in this corner, Citizens United Not Timid

Heh heh, get it, Beavis? C.U.N.T.

Yes, and that is about as intellectual as their website gets. Nevertheless, if they want to call Hillary a cunt, it is certainly their right to do so — and “Citizens United” (C.U.) likely has no quibble with that statement.

The fur begins to fly — Round one, dueling letters.

C.U. drew first blood. They sent this poorly written and poorly reasoned demand letter. (Learn how to spell “Lanham Act” before you go trying to use it).

In response, C.U.N.T. sent its own letter. Despite the fact that C.U.N.T. seems to take itself a lot less seriously than C.U. does, C.U.N.T. seems to have hired a decent lawyer.

Round two, litigation hissy fit ensues

Just like any good tort-reform minded right wing group would do… when it didn’t get its way, C.U. ran to the Southern District of Florida and filed a lawsuit for trademark infringement, false designation of origin, and unfair competition against C.U.N.T.. Complaint.

I don’t see C.U.’s claim as any stronger than Hillary Clinton’s record on free speech.

For starters, trademarks are not word patents. C.U. doesn’t “own” the words “Citizens United.” They have trademark rights in them.

Trademarks are not “property” in the common sense usage of that word. They are words (or symbols) that tell us the source or origin of a commercial product. See, e.g., L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 29 (1st Cir. 1987). The mark owner’s “property” interest is limited to the right to prevent his goods from being confused with those of another and to “prevent his own trade from being diverted to competitors through their use of misleading marks.” Id. See also Power Test Petroleum Distributors v. Calcu Gas, 754 F.2d 91, 97 (2d Cir.1985) (quoting Industrial Rayon Corp. v. Dutchess Underwear Corp., 92 F.2d 33, 35 (2d Cir. 1937), cert. denied, 303 U.S. 640, 82 L. Ed. 1100, 58 S. Ct. 610 (1938)). Accord Dresser Industries, Inc. v. Heraeus Engelhard Vacuum, Inc., 395 F.2d 457 (3d Cir.), cert. denied, 393 U.S. 934, 89 S. Ct. 293, 21 L. Ed. 2d 270, 159 U.S.P.Q. (BNA) 799 (1968); Lucasfilm Ltd. v. High Frontier, 622 F. Supp. 931 (D.D.C. 1985).

Additionally, for the most part, trademark rights are limited to the goods and services that are provided under the mark. Lets take a look at the goods and services covered by C.U.’s registration:

Promoting public awareness of the need for the restoration of the people of the United States as the political sovereign over civil government and dissemination of information relating thereto

Word to the wise: If you file for a trademark registration, get a trademark attorney and not a political hack to fill out the application. This narrow description of the goods and services should be damaging, if not fatal, to the TM infringement claim. (Note, a TM registrant is not strictly limited to the goods and services in the registration. If the infringing use will cause confusion, infringement may still exist. See, e.g., Applied Information Sciences Corp. v. eBay, Inc., 2007 U.S. App. LEXIS 29871 (9th Cir. Dec. 28, 2007). Nevertheless, this goofy G&S description may prove problematic).

Even if it is not, C.U.N.T. probably has a fair use defense. The defense of fair use is triggered when the allegedly infringing use is “(1) other than as a mark, (2) in a descriptive sense, and (3) in good faith.” EMI Catalogue v. Hill, Holliday,Connors, & Cosmopulos, Inc., 228 F.3d 56, 64 (2d Cir. 2000) (citing 15 U.S.C § 1115(b)(4)); see also Int’l Stamp Art, Inc. v. United States Postal Serv., 456 F.3d 127, 1274 (11th Cir. 2006); Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1185 (5th Cir. 1980) (“The ‘fair use’ defense, in essence, forbids a trademark registrant to appropriate a descriptive term for [its] exclusive use and so prevent others from accurately describing a characteristic of their [own] goods.”).

Accordingly, if C.U.N.T. is actually a group of citizens who are united and not timid, then it would appear that the name fairly describes C.U.N.T.? This is not their strongest argument, but in the pure Lanham Act context, it should prevail… that is unless C.U.N.T. is just one guy (as it seems).

Even if it is just one guy, he certainly has a strong First Amendment defense. (And I see this as his strongest defense).

As noted above, trademark rights are not property rights in the strictest sense of the word.

Trademark rights do not entitle the owner to quash an unauthorized use of the mark by another who is communicating ideas or expressing points of view. As Justice Holmes observed while sitting on the Supreme Judicial Court of Massachusetts, “When the common law developed the doctrine of trademarks and trade-names, it was not creating a property in advertisements more absolute than it would have allowed the author of Paradise Lost.” Chadwick v. Covell, 151 Mass. 190, 193, 23 N.E. 1068, 1069 (1890). L.L. Bean, Inc. v. Drake, 811 F.2d at 29.

Trademark registration and enforceability must be strictly construed, lest they undermine clearly established First Amendment rights. See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817 (1976) (commercial speech involving “dissemination of concededly truthful information” is protected by the First Amendment.) Id at 773.

The suppression of the use of particular words by employing the Lanham Act “runs a substantial risk of suppressing ideas in the process.” San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 532 (1987). C.U.N.T. doesn’t appear to be trying to mislead anyone into believing that they are part of, affiliated with, or sponsored by the bat-shit-neocons at C.U. C.U.N.T. is simply making an off-color, sexist, even nasty statement about Hillary Clinton. Naturally, it says more about C.U.N.T. than it says about Hillary, but the First Amendment does not demand politeness nor civility. This is core political speech — the most sacred form of First Amendment protected activity.

What about the social issue?

I just wish that both of these groups would pull their heads from their asses and focus on the real issue — Hillary Clinton would be the third worst president in history, this much I agree with. But calling her a “bitch” or a “cunt” says a hell of a lot more about those particular detractors than it says about Hillary Clinton.

DollyMix has a good take on it:

I really wonder why people think this is okay. Can you imagine if people created an anti-Obama T-shirt that used The Mother Of All Racial Slurs? Yeah. Something tells me it would be kind of a big deal. (source)

Now… if you want to call her an ass-hat, that would be accurate and would not be tainted with uncalled-for misogyny.

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