Trademark laws vs. free speech: a candidate for the trademark hall of shame? [ip]

[Declan McCullagh <declan () well com>]

-------- Original Message --------
Subject: A candidate for the "Trademark Hall of Shame"?
Date: Tue, 24 Oct 2006 14:13:26 -0400
From: Paul Levy <plevy () citizen org>
To: <declan () well com>

This is the latest abuse of the trademark laws as a basis for 
threatening free speech.  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.  (Copies of the 
relevant correspondence can be viewed on our web site, URL's at the end 
of this message).

His response was to tell me that he would "look forward to meeting [me] 
personally."  We'll see about that.



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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