Trademarks Laws Must Not Be Used to Curtail First Amendment, ACLU Calls on House to Preserve Freedom of Speech

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Contact: Media@dcaclu.org

WASHINGTON -Trademark laws should not be used as a pretense for the curtailment of the freedom of speech, and steps must be taken to better protect First Amendment expression like political parodies of trademarks and corporate logos, an American Civil Liberties Union lobbyist warned a key House subcommittee today.

“Trademark law provides an important tool for preventing confusing or deceptive marketing,” said Marvin J. Johnson, an ACLU legislative counsel. “But we must make sure that trademark laws aren’t used as a pretext to stifle criticism or competition.”

Johnson appeared today before the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property to offer the ACLU’s concerns with H.R. 638, “The Trademark Dilution Revision Act of 2005.”

Parodies that use trademarks and corporate logos to generate awareness about social issues represent a type of important civic speech that is traditionally protected under the First Amendment. They make critical commentary on the trademark holder, furthering the traditional goals of trademark law by informing the consumer about the goods and services they purchase.

In his testimony, Johnson noted that the bill seeks to greatly expand the existing Trademark Dilution Act, making it easier for trademark holders to prove trademark violations, while simultaneously watering down protections for free speech. He urged Congress to accept amendments that would safeguard free speech.

For example, Farmers Group is suing a man named Guerrero for a gripe Internet site he administers, an Internet site critical of Farmers. Because he used the Farmers logo and name on the site, Farmers is claiming, among other things, dilution of its trademark and service mark. Yet, if Guerrero did not use the Farmers name or logo, visitors to his site would be unlikely to determine that Farmers was the target of his ire, a fact probably not lost on Farmers.

“If the proposed bill were to pass as is, the ability to criticize and parody trademarked information would be severely diminished,” Johnson added. “Our country’s commitment to open ideas and open criticism demands that those freedoms be protected.”