Trademark claims to silence critics?

by Walter Olson on October 20, 2009

Boston software maker Jenzabar has already sued the makers of a Tienanmen Square documentary on defamation theories, which a court dismissed. But it’s kept the litigation going on trademark infringement theories. [Paul Levy, Consumer Law & Policy; Ron Coleman, Likelihood of Confusion; Boston Globe June report linked earlier]

{ 6 comments }

1 A.W. 10.20.09 at 12:26 pm

its been done before. when that woman put out the parody of gone with the wind, called the wind done gone or something like that, the family tried to shut it down based on copyright theory.

2 Doug 10.20.09 at 4:21 pm

There is no comparison between Wind Done Gone, which was found to be a sequel and not a parody, (thus could not be published) and this company using copyright law is erroneous. They have nothing substantive in common.

3 Dirk D 10.20.09 at 6:34 pm

Doug,

You are wrong on the Wind Done Gone. The 11th circuit found that it was parodic in nature and that the publisher was entitled to a fair use defense.

4 Doug 10.21.09 at 3:05 am

Dirk D., your right. I did not check. However, I still think that this company is misusing trademark law.

5 A.W. 10.21.09 at 11:04 am

well, i think the more egregious example is using copyright law to sue over that dopey obama “hope” poster. i guess the theory is that the president’s face with his head at a certain angle can be copyrighted. if i was a judge i would bounce that sucker at first glance.

6 Dirk D 10.21.09 at 2:06 pm

A.W.

The poster case is classic copyright and is about what almost all copyright cases are about; money and credit. It’s not whether a head angle can be copyrighted, copyright only prevents copying not independent creation. It’s whether the artist infringed the right of the photograph owner by copying the photo and/0r preparing a derivative work (another right granted to owners). The artist’s defense was originally that he didn’t copy (that appears to be a lie) but his better and more interesting defense is fair use. It’s actually a fairly close case and very interesting case.

The trademark case above, has nothing to do with trademark law but rather someone using trademark law to sustain an otherwise unsuccessful action intended to silence critics.

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