February 3, 2006 Trademark Bill Would Severely Limit Speech of Artists, Small Business Owners, Others; Groups Urge Against Passage

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Feb. 3, 2006

Trademark Bill Would Severely Limit Speech of Artists, Small Business Owners, Others; Groups Urge Against Passage

Judiciary Committee to Consider Trademark Dilution Revision Act on Feb. 16

WASHINGTON, D.C. – Several consumer, arts and public interest groups today jointly sent a letter to the Senate Judiciary Committee condemning provisions in the Trademark Dilution Revision Act (H.R. 683) that weaken protections for individuals and small businesses that refer to companies by their trademarks. The groups – the American Library Association, Public Citizen, the Electronic Frontier Foundation, Public Knowledge, Professional Photographers of America, the Society of Children’s Book Writers & Illustrators, and National Video Resources – also suggested minor changes to the bill that would maintain protection against big companies when people cite their trademarks. The committee is scheduled to consider the bill on Feb. 16.

Consumers and artists are currently protected from being sued for trademark infringement by companies if the use of the trademark is for “fair use” – a use that must meet a complex legal test – for news reporting/commentary, or for non-commercial use, but the recently House-passed bill (HR 683) eliminates the current non-commercial protection that the public receives. For instance, when Don McLean sang about driving his Chevy to the levee and finding the levee dry, the songwriter could have been sued for trademark dilution under the current language of the bill. Or when Walter Mondale criticized Gary Hart during the 1984 primaries by using Wendy’s slogan, “Where’s the beef,” the remarks could be considered a trademark violation under the bill as passed by the House. According to the groups, this measure would severely limit small business owners, artists, photographers, illustrators and consumers from mentioning or using references to companies’ trademarks. The result would force individuals who are being sued by companies to use a defense that is more difficult to prove.

“Unfortunately, some trademark owners are not content with using trademarks to inform consumers of their sponsorship, but would like to expand the trademark laws to interfere with robust commentary,” the letter from the groups said.

To read the letter to the Senate Judiciary Committee, click here.

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