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Jan. 20 - ‘Yes Men’ Prank Against Chamber Is Protected by First Amendment, Public Citizen Tells Court

Trademark Law Does Not Cover Political Speech

When a parody troupe impersonated officials from the U.S. Chamber of Commerce and held a press conference in the Chamber’s name, it was a prank, not a trademark violation, Public Citizen argued in a brief filed in support of the Yes Men, a political activist group.

The amicus curiae, or "friend of the court," brief, was filed on January 18, 2010 in the U.S. District Court for Washington, D.C.

In October’s widely publicized hoax, the Yes Men posed as representatives of the Chamber and announced the supposed reversal of the Chamber’s climate-change views at a press conference at the National Press Club. The Yes Men were attempting to draw attention to what they viewed as an uninformed and reckless position on climate change. The Chamber turned around and sued the activists for alleged trademark infringement.

Even if the prank had caused temporary confusion, the First Amendment bars any extension of trademark law to noncommercial speech, and this prank was purely political speech, Public Citizen argued.

"The activists’ fake press conference was not commercial in any sense. Rather, it aimed to highlight the Chamber’s view on arguably the most weighty and controversial issue of the day," said Public Citizen attorney Gregory Beck, who co-authored the brief. "Therefore, the group’s speech should be protected."

The Yes Men filed a motion Jan. 5 to dismiss the case, asserting that no trademark infringement occurred.

"Confusion over the origin or attribution of ideas is not the kind of confusion that trademark laws were designed to address," said Deepak Gupta, another Public Citizen lawyer who co-authored the brief. Any confusion that may have ensued from the political stunt would not infringe upon the Chamber’s goods and services, Gupta said.

Because the stunt involved no commercial transactions, the only marketplace relevant here is the marketplace of ideas, which is protected by the First Amendment, Public Citizen said in the brief.

Public Citizen’s brief is available at http://www.citizen.org/litigation/forms/cases/CaseDetails.cfm?cID=590. 

The Yes Men are represented by the Electronic Frontier Foundation and Davis Wright Tremaine. Their brief asking the court to dismiss the case is available at http://www.eff.org/cases/chamber-commerce-v-servin .

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