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Wal-mart loses online trademark case |
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Written by Felix Da Silva (fdasilva@bitnip.com)
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Friday, 28 March 2008 |
 The courts found that Charles Smith’s parody websites 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.
According to the press release, Wal-Mart sued Charles Smith in 2006, claiming he infringed on its
trademark by creating parody logos and Web sites built around the “Walocaust”
and “Wal-Qaeda” concepts.
Charles Smith, operator of www.walocaust.com and www.walqaeda.com, is fully protected by the First Amendment
even though a parody is placed on a T-shirt and sold, it nevertheless
represents non-commercial speech and, thus, is not a proper basis for a trademark action.
Paul Alan Levy, a Public Citizen attorney, said
This ruling shows that even the biggest company in America is subject to parody,
and that trademark rights must yield to the right of free speech. This is a resounding victory for First Amendment rights and sends a clear message to
big corporations that would try to use their deep pockets to intimidate and
silence their critics. Although Wal-Mart spent more than $200,000 on an “expert” witness to prove that
consumers seeing these parody T-shirts were likely to be confused, the judge
properly recognized that the expert’s testimony was junk science and flew in the
face of common sense.
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