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No, you can't use Trademark Law to stifle critics!

It does not entirely turn my stomach when a corporation wants to stifle a critic. Most people and companies would want the same.

It does entirely turn my stomach when an attorney misuses his position as an officer of the court to try and support such efforts – this is the kind of behavior that gives our otherwise-honorable profession a dirty name.

On the other hand, when public interest lawyers like Public Citizen step in to defend First Amendment rights, that is the brightest star in the legal profession’s constellation.

WASHINGTON, DC – March 21 – A federal judge today upheld a Georgia man’s First Amendment right to criticize Wal-Mart’s business practices by using satire to compare its destructive effects on communities to both the Holocaust and al-Qaeda terrorists.

In rejecting the company’s claim of trademark infringement, the U.S. District Court for the Northern District of Georgia in Atlanta found that Charles Smith’s parody Web sites ( and and related novelty merchandise were protected speech and that a reasonable person would not confuse their use with Wal-Mart’s legitimate trademarks. The court also rejected Wal-Mart’s claim that it has trademark rights in the “smiley-face” that Smith used in one of his parodies.

Public Citizen and the American Civil Liberties Union of Georgia Foundation defended Smith after Wal-Mart sued the Conyers, Ga. man in 2006, claiming he infringed on its trademark by creating parody logos and Web sites built around the “Walocaust” and “Wal-Qaeda” concepts, including the image of an eagle clutching a yellow smiley face, similar to the one Wal-Mart uses in advertising. Smith also put the design on T-shirts, bumper stickers and other items that he sold on

Judge Timothy C. Batten Sr.’s decision reaffirms an important point of trademark law – that even though a parody is placed on a T-shirt and sold, it nevertheless represents non-commercial speech that is fully protected by the First Amendment and, thus, is not a proper basis for a trademark action, said Paul Alan Levy, a Public Citizen attorney, who represented Smith along with Gerald Weber of Atlanta.

“This ruling shows that even the biggest company in America is subject to parody, and that trademark rights must yield to the right of free speech,” Levy said. “This is a resounding victory for First Amendment rights and sends a clear message to big corporations that would try to use their deep pockets to intimidate and silence their critics.”

Although Wal-Mart spent more than $200,000 on an “expert” witness to prove that consumers seeing these parody T-shirts were likely to be confused, the judge properly recognized that the expert’s testimony was junk science and flew in the face of common sense. (source)

Judge Batten’s ruling is here. How can you go wrong with a judge whose initials are TCB?

Case documents and details are here.

HT to Ron Coleman.

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