Homeland Security Totally Misunderstands Trademark Law; Seizes Perfectly Legal Sporting Goods Anyway

from the because-fuck-you,-we've-got-guns dept

Homeland Security’s Immigration & Customs Enforcement group (ICE) has a history of seizing stuff without understanding even the most basic concepts around intellectual property. After all, these are the same meatheads who seized some blogs for alleged copyright infringement, and then had to return some of them over a year later, after they realized it was a mistake. ICE also has a history of using big sporting events to kiss up to the multi-billion dollar sports organizations by shutting down small businesses, protecting Americans from unlicensed underwear. And, of course, what bigger sporting event is there than the Super Bowl. Every year they make a bunch of seizures related to the Superbowl, and this year was no different.

ICE agents gleefully were patrolling Phoenix looking for clothes to seize. But there was just one, rather large, problem with how they went about it. It appears that the people in charge of all this, didn’t know the first thing about the “law” they were supposedly enforcing. Seizing counterfeits is about stopping trademark infringement. But not everything using a trademark is infringing. Trademark, after all, is a form of a consumer protection law, designed to protect people from buying one thing, believing it’s another. If there’s no likelihood of confusion, then ICE isn’t supposed to be seizing it (and, yes, there is also dilution of trademark, but ICE isn’t supposed to be seizing products that dilute someone’s trademark — just those that are “counterfeit”). But that’s not, apparently, how ICE sees things:

The profane debasing of a mascot ? and really anything that denigrates a team ? is guaranteed to be contraband, said Daniel Modricker, a spokesman for US Immigration and Customs Enforcement. That ?Yankees Suck? T-shirt you put on for special occasions? If it uses anything that looks like a team or league logo, it probably constitutes trademark infringement.

Almost all of that is wrong. Using someone else’s trademark to comment on them is a perfectly legal use — and not at all counterfeit. Pretending otherwise gets into some pretty sketchy First Amendment areas, as using a trademarked word, phrase or image to criticize someone is considered protected. But, not to ICE. As Rebecca Tushnet explains:

“Profane debasing”–and when did mascots become sacred?–is not confusing. I don’t think ICE has authority to seize diluting merchandise, and anyway very few of these will be using the profaned mascots “as a mark,” meaning the dilution exceptions for parody and criticism apply. This is a blatant misunderstanding of the law, being perpetuated by a federal official with only the small reassurance that federal agents won’t come down and rip a previously purchased shirt off your back.

Of course, the small time vendor with a table on the street isn’t likely to challenge the federal government for stealing his perfectly legal shirts that “debase” a mascot. So ICE’s Daniel Modricker gets to spew his ignorant and wrong statements and get away with it. Because ICE is ICE, and this is generally how it goes about its business. It has the guns and it gets to decide the law, no matter what the Constitution has to say about it.

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Comments on “Homeland Security Totally Misunderstands Trademark Law; Seizes Perfectly Legal Sporting Goods Anyway”

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40 Comments
Anonymous Coward says:

Re: Re:

Ahem. Parody? Satire? Joke?

Those are not allowed in a police state, along with hyperbole, metaphor, and other forms of expression that require intelligence to interpret. Every statement a person makes will be interpreted literally, especially if that means the state can take action against them.

Pragmatic says:

Re: Re: Re: Re:

Thank you.

There are fifteen holdouts remaining, per Wikipedia.

Gun rights do NOT protect us from an out of control government. It’s been out of control since 9/11 and no gun rights group has done anything about this – apart from whine that gun rights are under assault.

Please don’t take this as a call to violent revolution, I happen to think that’s a stupid idea and that we would lose. You fight this crap at the ballot box, not with bullets.

Pragmatic says:

Re: Re: Re:3 Re:

Okay, let’s deal with that. We beat SOPA by getting enough people angry about it. The current left/right divide convinces enough people that their side wins by cheating to allow this to continue, so they don’t care enough to take it on.

We need to convince them to care enough to take it on.

Remember Kshama Sawant?http://en.wikipedia.org/wiki/Kshama_Sawant

She’s a damned socialist! And she got elected to office because enough people wanted her in. We CAN do this if we get enough people to care enough to vote for a real alternative. Negativity never achieved a thing. Let’s be positive, make plans, and effect the change we want.

Anonymous Coward says:

I think I’ve figured out that a high IQ is an automatic disqualification for employment by ICE, just as for some police forces.

Profane debasing mascots actually sounds rather fun. It ought to be taught in schools, like critical thinking (obligatory obscure reference to the time the Texas Dept Ed was encouraged to ban teaching of critical thinking because it ‘challenged parental authority’ – which is what I thought children were for).

Anonymous Coward says:

>…dilution exceptions for parody and criticism apply.

My favorite parody shirt involves AT&T. The one where the bald eagle with red glowing eyes is grasping all the telcom cables with it’s talons. The eagle is wearing a AT&T shield stamped on it’s chest. No doubt ICE would taser and rip that shirt off you if they saw you wearing it around in public.

Zonker says:

…only the small reassurance that federal agents won’t come down and rip a previously purchased shirt off your back.

I’m tempted to dare ICE to do this by sporting profane debasements of mascots with team logos on all my clothing at the Big Game next year, including underwear. Come on, I dare you to rip each infringing item off of me right there in the stadium.

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