Court Realizes That Criticizing A Trademark Is Not Trademark Infringement

from the phew dept

For quite some time now, there's been a push to extend the meaning and purpose of trademark law to make it more like copyright or patent law -- granting the holder of the mark much more control over its usage. Of course, trademark law really isn't even about "intellectual property." The purpose of trademark law is much more a consumer protection law -- avoiding a situation where someone is selling something while claiming it's actually something else (or endorsed by someone else). In other words, it's to protect consumers from being misled. In lumping it in with copyright and patents, though, many have started to assume that it really is like those things, granting owners much more control over their trademark than was ever intended. Unfortunately, there have even been times when the courts have agreed.

In a recent example of just how bizarre this has become, there was apparently a dispute over the trademark of the word "Freecycle" that's been used by groups who promote reusing stuff that would otherwise be thrown out. There was an attempt to trademark the term, but not everyone was happy about it. One guy put up a website protesting the idea to trademark the term, and he got sued for trademark violations in using the mark in his criticism. Clearly, that's way beyond the consumer protection purposes of trademark -- but a district court actually agreed with the trademark holders, saying that the guy violated trademark law in "disparaging" the trademark. Luckily, the 6th Circuit appeals court has now overturned the ruling, noting that there is little to no chance of confusion here over the mark. More importantly, the court pointed out that there is no such law against "disparaging" a trademark. That's a good thing, too, or pretty much all criticism would be outlawed.

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