The Intersection of Free Speech and Trademark Law

We recently discussed the convergence of Anti-SLAPP laws and copyright law. As ongoing litigation in the Federal Circuit demonstrates, the First Amendment also intersects intellectual property law in the context of trademark rights.

In April, the Federal Circuit upheld the U.S. Patent and Trademark Office’s denial of trademark registration for an Asian-American band called “The Slants.” The Court reasoned that denying registration for a “disparaging” trademark as defined by the Lanham Act did not amount to a First Amendment violation since the “PTO’s refusal to register appellant’s mark does not affect his right to use it. No conduct is proscribed, and no tangible form of expression is suppressed.” A week later the earlier opinion was vacated and the Court voted for a sua sponte en banc hearing for another chance to answer this constitutional question: whether denying registration for a  “disparaging” trademark violates the First Amendment.

More recently, in what the Consumer Law & Policy Blog called “Another Important Win for Free Speech,” the Fourth Circuit, in Radiance Foundation v. NAACP, held that the Radiance Foundation’s characterization of the NAACP as “National Association for the Abortion of Colored People,” did not infringe on the NAACP’s trademark rights. Citing New Kids on the Block v. News Am. Publ’g, Inc., the Court held that if such a characterization constituted trademark infringement, “many social commentators and websites would find themselves victims of litigation aimed at silencing or altering their message, because, as noted, ‘it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference or any other such purposes without using the mark.’”

The line of demarcation between Constitutionally-protected free speech and disparaging names unworthy of trademark protection will likely remain a “moving target” for years to come, and will have substantial economic impact for those that wish to keep or enforce trademarks that are viewed as “disparaging” – just ask the Washington Redskins.  Check back for further updates on this interesting intersection of free speech and trademark law.

Cisco Being Sued For Aiding and Abetting in China’s Internet Crackdown

Harry Wu to Hold Press Conference at National Press Club
Tuesday, June 7th at 9:30 am

Washington, DC | June 6th, 2011 |

Today, with the financial support of the Laogai Research Foundation, three Chinese dissidents filed a lawsuit against Cisco Systems, Inc. in the United States District Court in Maryland. Mr. Du Daobin, Mr. Zhou Yuanzhi, and Mr. Liu Xianbin, represented by Daniel Ward of Ward & Ward, PLLC, are suing Cisco Systems, Inc. and several senior management personnel including: Thomas Lam, President of China Operations; Owen Chan, President of Asia Pacific Operations; Rick Justice, Executive Advisor; and John Chambers, Chairman and CEO. The defendants are accused of knowingly aiding and abetting the Chinese government’s internet crackdown by providing technology and training for the construction and operation of the “Golden Shield Project”, also known as “China’s Great Firewall”.

The plaintiffs are prolific writers who promote democratic reform and increased freedoms for the Chinese people through articles published on the internet. It was through network surveillance technology provided by Cisco that the Chinese Ministry of Public Security was able to track the Plaintiffs down for exercising their right to free speech. This led to their harassment, arbitrary detention and arrest, and physical, mental, and emotional torture and abuse. The plaintiffs are seeking compensatory damages for injuries and are requesting that the defendants be held accountable for their actions.

Since early 2000, Cisco has been involved with the construction of the “Golden Shield Project,” providing technology and training to the Ministry of Public Security which the Chinese government has used to monitor, track, and arrest political dissidents, practitioners of “illegal” religions, and anyone who posts content that threatens the stability of the Communist Party. This has affected countless victims, including artist and political activist Ai Weiwei, civil rights activist Chen Guangchen, and human rights lawyer Gao Zhisheng.

The most well-known victim, however, is the 2010 Nobel Peace Prize winner Liu Xiaobo. After helping to write Charter 08, a petition for political reform, and authoring numerous articles promoting democracy and human rights in China, Mr. Liu was rewarded not only with a Nobel Prize, but also with detention, arrest, deprivation of political rights, and a hefty 11-year prison sentence.

While Liu remained in prison during the awards ceremony, Cisco’s CEO John Chambers made it to Oslo, making known his company’s contribution to funding the Nobel Peace Prize Concert. Yet, without Cisco’s extensive cooperation, it would not have been so easy for China’s Ministry of Public Security to monitor the writer’s online activities and imprison him on the charge of “inciting subversion of state power.” Although Liu Xiaobo has no way of fighting for justice from inside his prison cell, through this lawsuit, plaintiffs Du, Zhou, and Liu hope to expose the extent of Cisco’s cooperation with the Ministry of Public Security.

Harry Wu, Laogai Research Foundation Executive Director, will hold a press conference tomorrow, June 7th, at 9:30 am at the National Press Club to discuss Cisco’s role in China’s internet crackdown and answer questions about this increasingly important issue.

U.S. Senator Hammers Apple over Antennagate

U.S. Senator Charles Schumer (D-NY) has weighed in on the iPhone 4 controversy, issuing a sharply worded letter to Apple CEO Steve Jobs. A powerful member of the Senate Banking Committee, Sen. Schumer urges Apple to “address the flaw in a transparent manner,” raising concerns with the discrepancy between Apple’s official response and reports that a defective antenna is to blame for reception issues.

July 15, 2010

Dear Mr. Jobs,

I write to express concern regarding the reception problem with the Apple iPhone 4. While I commend Apple’s innovative approach to mobile technology and appreciate its service to millions of iPhone users nationwide, I believe it is incumbent upon Apple to address this flaw in a transparent manner. According to Consumer Reports’ review, released Monday on its website, the iPhone 4′s signal-strength problem is a hardwire glitch triggered by gripping the device in a particular manner. This finding, according to Consumer Reports, “call[s] into question” Apple’s recent claim that the problem is “largely an optical illusion caused by faulty software.” Consumer Reports declined to recommend the iPhone 4 because of this hardware design flaw.

Given the discrepancy between Consumer Reports’ explanation of the reception problem and the explanation provided by Apple in its July 2 letter to customers, I am concerned that the nearly two million purchasers of the iPhone 4 may not have complete information about the quality of the product they have purchased. The burden for consumers caused by this glitch, combined with the confusion over its cause and how it will be fixed, has the potential to undermine the many benefits of this innovative device. To address this concern, I ask that Apple provide iPhone 4 customers with a clearly written explanation of the cause of the reception problem and make a public commitment to remedy it free-of-charge. The solutions offered to date by Apple for dealing with the so-called “death grip” malfunction-such as holding the device differently, or buying a cover for it-seem to be insufficient. These proposed solutions would unfairly place the burden on consumers for resolving a problem they were not aware of when they purchased their phones.

I also encourage Apple to keep its promise to provide free software updates so that bars displayed accurately reflect signal strength; I further urge Apple to issue a written explanation of the formula it uses to calculate bar strength, so that consumers can once again trust the product that they have invested in.

I look forward to Apple’s swift action on this matter, and once again laud Apple for its innovative efforts and service to millions of Americans.

Sincerely,

Charles E. Schumer

If you own an iPhone 4, and are interested in participating in our lawsuit against Apple and AT&T, please email me at dan@wardlawdc.com. I look forward to hearing from you.

Thank you,

Dan Ward

Apple Drops Restocking Fee For iPhone 4

The only thing worse then being sold a defective product is having to pay for the privilege of returning it. A few days after Ward & Ward, PLLC and Charles A. Gilman LLC filed suit against Apple alleging, among other things, deceptive trade practices, fraud, negligence in design and breach of warranty relating to the iPhone 4’s defective antenna, Apple decided to waive the 10% restocking fee it charges customers returning their defective iPhones.

However, in their July 2nd statement denying any design problems with the iPhone 4 antenna and blaming the reception problems on a flawed signal strength indicator, Apple said customers have only 30 days from the time of purchase to receive their refund. That means time is quickly running out for customers who bought their iPhone 4 on or near the June 24th release date to return their defective iPhones. And what about customers who bought their phones at places like Best Buy, Wal-Mart, or an AT&T store? Will they be able to return their defective phones free of charge as well? Waiving the re-stocking fee is a good start, but what about the two year AT&T contract customers had to sign? Will that be waived as well? Should consumers be stuck with a two year AT&T contract based on their purchase of a flawed iPhone 4?

If you own an iPhone 4, and are interested in participating in our lawsuit against Apple and AT&T, please email me at dan@wardlawdc.com. I look forward to hearing from you.

Ward & Ward, PLLC and Charles Gilman, LLC file suit against Apple & AT&T

Ward & Ward, PLLC and Charles A. Gilman, LLC filed a lawsuit on June 30, 2010 in the U.S. District Court for the District of Maryland on behalf of Kevin McCaffery, Linda Wrinn, and other iPhone 4 purchasers similarly situated.

If you are interested in joining this suit, we would be happy to represent you. This lawsuit may become a class action lawsuit, and we will operate on a contingent-fee basis.

If you own an iPhone 4, and are interested in participating in this lawsuit, please email me at dan@wardlawdc.com. I look forward to hearing from you.

Thank you,

Dan Ward

Ward & Ward Partner Mark Vlasic speaking at International Funds Conference

Mark Vlasic, a Partner at Ward & Ward PLLC and Senior Fellow at Georgetown’s Institute for Law, Science and Global Security, will be speaking at the International Funds Conference 2010 in the Cayman Islands on January 14.

Mr. Vlasic will be speaking about International Corruption and Asset Recovery. More information about Mark Vlasic and his research is available here.