A few months ago, I blogged on the Freecycle v. Oey case, here.
In that case, Timothy Oey a former member of “The Freecycling Network” opposed TFN’s efforts to trademark the term FREECYCLE. Oey argued on various discussion boards that “freecycle” is a generic term and that it should remain free for all to use as a term for giving and receiving goods for free, instead of placing them in landfills.
The District of Arizona, temporarily on vacation from employing logic or respecting the First Amendment issued an order prohibiting Oey from making “comments that could be construed as to disparage upon Freecycle’s possible trademark and logo.” Not to be satisfied with such foolishness, the D. Ariz. also ordered Oey “to remove all postings from the internet and any other public forums that he has previously made that disparage Freecycle’s possible trademark and logo.” (order here – HT to Volokh)
My initial post on this case concluded with the following paragraph:
Lets stay tuned to this one, because if the 9th Circuit doesn’t overturn this blatantly unconstitutional injunction, up will become down, cats and dogs will be living together, and yet another area of intellectual property will have expanded to the detriment of the First Amendment.
Lets hear it for the 9th, as they did overturn the injunction! (opinion here)
EFF’s comment on the case sums it up rather well:
The Ninth Circuit ruled that Oey’s honest opinion about Freecycle’s trademark rights could not be stamped out by a claim of trademark infringement under the Lanham Act. First, the decision correctly notes that Oey did not make any commercial use of the alleged “freecycle” mark in his emails and Internet postings. Second, it noted that there was no evidence that his activities were likely to confuse consumers or otherwise mislead the public. And third, and perhaps most importantly, the Court wrote:
“Nor does the [Lanham Act] prevent an individual from expressing an opinion that a mark should be considered generic or from encouraging others to use the mark in its generic sense… TFN’s mere disagreement with Oey’s opinion and frustration with his activities cannot render Oey liable under the Lanham Act.” (source)
I particularly liked Ron Coleman’s summary of the case:
Thank you, Ninth Circuit. What’s astonishing, depressing and pathetic is that the mark owners won at the trial level. That’s the level at which small- and medium-sized business and individuals get slaughtered every day.(source)
If I could have said it better, I would have.
Key Documents:
- District Court Order in Freecycle v. Oey
- 9th Circuit Opinion in Freecycle v. Oey
