Court Upholds Decision Against Trademark-Bullying AIDS Denialist, But More Needs To Be Done To Deter Censorious Lawsuits
from the a-win,-but-not-a-fix dept
You may wonder what kind of person would deny that HIV leads to AIDS or death, but when you come across someone like prominent “AIDS denialist” Clark Baker, you may be inclined to believe that this is but a small part of his misanthropy. Baker has — previous to his IP-abusing lawsuit against an HIV-positive blogger — been arrested for assaulting a jaywalker and provides legal counsel to people accused of endangering sexual partners by concealing their HIV/AIDS status.
Baker sued a critic of his (the above-mentioned blogger) but had no legal basis for doing so. This didn’t stop him from pursuing the lawsuit because intellectual property laws always seem willing to lend a hand when there’s some censoring to be done. Baker originally skewed the blogger’s postings as defamatory, but apparently wasn’t too confident in letting that accusation stand on its own. So, he added something about trademark law — supposed Lanham Act violations tied to the use of his entity’s (HIV Innocence Project) name in the defendant’s URL (hivinnocenceprojectruth.com).
The addition of trademark bullying resulted in a net loss for Baker at the hands of the Fifth Circuit Court.
Although the appellate decision itself is not very illuminating, the fact that the court indicated that its reasoning was the same as that of the trial judge helps illuminate the ruling as well as reinforcing the important precedent that it set — that when a defamation plaintiff throws in a trademark claim to justify suing in federal court, as well as hoping to make the whole proceedings more intimidating to the defendant, it really is possible to get the case thrown out at the pleading stage.
Good news for bloggers, as Public Citizen’s Paul Alan Levy points out. Getting a case tossed at the pleading stage saves a whole lot of money and bloggers who utilize trademarks in their writing (especially when writing critical pieces) need a safety valve to prevent them from trademark bullies. This case does offer some hope in that respect, although there’s still many gray areas of IP law left untouched in the decision — including crucial defenses like protected speech and fair use.
The main reason why Levy took this case (apart from answering the Popehat signal) is to help establish precedent in terms of legal fee awards in clear cases of trademark bullying. The Fifth’s two-page affirmation of the lower court’s decision leaves this particular aspect unaddressed.
But I have been concerned about the fact that some circuits, the Fifth Circuit among them, set a standard for awarding attorney fees for winning trademark defendants — demanding a showing of bad faith by clear and convincing evidence. There is wide-ranging agreement among the various circuits about just what standard should govern trademark attorney fees awards. Our long-standing argument has been that, when a trademark theory is used to try to shut down an expressive use, groundlessness of the claim should alone be sufficient to treat the claim as “exceptional.”
What has been applied to patent cases by the Supreme Court should also be applied to trademark cases, Levy argues in a brief to the circuit court. In Octane Fitness v. Icon Health and Fitness, it ruled that the groundless nature of the lawsuit itself can be enough to award attorneys’ fees — overturning a lower court’s finding that this alone wasn’t sufficient enough to raise the case to the “exceptional” level.
In our brief to the Fifth Circuit on the fees issue, we argue that because the Lanham Act and Patent Act both allow awards of fees in “exceptional” cases, and because a variety of other aids to statutory construction suggest that the standards for fees under the Lanham Act should follow patent-law precedent, the court ought to take Octane Fitness as its new governing standard for trademark cases. We also argue that the fact that the complaint could have been dismissed on several different grounds supports a conclusion that the lawsuit was sufficiently lacking in merit to warrant an award of attorney fees without considering the evidence that plaintiffs were using the litigation to pursue the improper purpose of intimidating a critic and using discovery to pursue some pretty wild conspiracy theories.
Better deterrents are needed to ward off future censorious lawsuits. Anti-SLAPP laws are a start, but they’ve only been adopted in a handful of states. Precedent from a higher court would at least establish a new baseline in the court’s district, sending the message that baseless lawsuits — if not tossed nearly immediately — will open plaintiffs up to further damages in the form of legal fees.