Last Thursday, a federal court in Georgia handed down a big win for free speech when it ruled that Wal-Mart could not use trademark law to stop a critic from disseminating his virulently anti-Wal-Mart views over the Internet. From Public Citizen's press release:
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 (www.walocaust.com and www.walqaeda.com) 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 CafePress.com.
Smith has quite a colorful way of expressing himself. Some of the examples discussed in the district court's opinion include gems like "WAL*OCAUST: Come for the LOW prices, stay for the KNIFE fights" and two graphics, one naming Hillary Clinton the "Wal-Qaeada Employee of the Year 1986-1992" and the second bestowing on Chairman Mao Zedong the "Wal-Qaeda Human Resource Achievment Award."
Seriously, though, the court reached the right decision in this case, regardless of what you think of the merits of Smith's work. His parodies obviously represent acts of critical commentary and present no risk whatsoever of confusing consumers as to the source of goods or services, which, after all, is what trademark law is meant to protect against. It would seriously undercut freedom of speech if trademark law allowed companies to stop core political/social speech of this kind. Moreover, in rejecting Wal-Mart's trademark dilution claim, the court rightly held that Smith's critical speech was "noncommercial" even though he placed his designs on T-shirts and other goods sold to the public.
Marc Randazza and Ron Coleman have additional analysis on the case. If you're looking for a scholarly point of view on trademark law and freedom of speech, Bill McGeveran has some recent work on the topic. For additional details and court documents, see Wal-Mart v. Smith (Letters) and Wal-Mart v. Smith (Counterclaims).