Free Speech Victory in Minnesota

On August 20, the Minnesota Court of Appeals overturned the district court verdict in Moore v. Hoff. This was a strange case but ultimately the question turned on whether the First Amendment protects true statements that cause someone to be fired. We won at trial on the issue of defamation, but the jury returned a verdict that essentially said that what Mr. Hoff wrote on his blog was true, but it interfered with Jerry Moore’s employment contract.

Tortious interference is the tort that involves interfering with someone else’s contract. But to be “tortious,” it the interference has to be wrongful. We successfully argued that no matter what the result, telling the truth about a public figure is protected speech and therefore it can’t be “tortious.” The Court of Appeals agreed with us that the jury’s tortious verdict violated existing tortious interference case law and the First Amendment.

This was a big first for me in several respects. It was my first jury trial, my first appeal, and my first case that attracted any media attention. Most trademark, copyright, or business matters don’t attract attention and don’t go to trial. I also took the case just a few weeks before trial. The appeal would not have been successful without the support and help of others, especially my co-counsel Mark Anfinson and counsel for the amicus parties, John Borger. Both of them had substantially more First Amendment experience and I needed every bit of help I could get.

The opinion is here.
The post that started it all is still online at The Adventures of Johnny Northside.

UPDATE: The case now has a reporter number and can be cited as Moore v. Hoff, 821 N.W.2d 591 (Minn. Ct. App. 2012).


Fair Use – Priority Marketing Blog

I missed this when it was originally published. I spoke to the IABC a couple of weeks ago about internet law for marketing and public relations professionals. In attendance was Jen Carlton of Priority Marketing who blogged about the copyright and fair use portion of my talk. Thank you Jen!

I’m not surprised that the group found fair use to be interesting because its one of the more frequently contested and misunderstood areas of copyright law. You can read Jen’s post for a bit of fair use law and I’ll probably be blogging about it again soon.


Don’t Let Your Business Decisions Be Clouded By Rumors

“Mark Twain famously said that a lie can go around the world while truth is still putting on its boots.”

MinnPost has a great article with lessons businesses can learn from the Shirley Sherrod story. Cooler heads and actual evidence should have prevailed in the first place.


Why I Volunteered for the EFF

A group called the U.S. Copyright Group (USCG) has filed a lawsuit against thousands of as yet unknown people who may (or may not) have downloaded or uploaded movies on file sharing networks. The strategy, which has been employed by others in the past, is to file or threaten to file a lawsuit and then offer to settle for a few thousand. Defending a copyright lawsuit will almost certainly cost much more so the offer is tempting. Plus, copyright law allows statutory damages of up to $150,000 per work, so the potential risk can be severe.

One problem with employing this strategy on the scale that the USCG is doing is that it will almost certainly result in a large number wrongly identified people who feel compelled to pay up because its cheaper than fighting. It undermines rights to privacy and anonymity. Furthermore, it doesn’t get to the real issue of how to compensate artists for their work. Lawsuits can’t possibly be a realistic long-term business model.

As far as I know, the USCG only has a large list of suspect IP addresses and is currently attempting to obtain the identities of people so they can give them the pay up or go to court offer. The Electronic Frontier Foundation has created a resource for people who are faced with responding to a subpoena and would like advice with responding. I have volunteered to work with people in Minnesota who are faced with this situation. There are other attorneys in other states who have volunteered as well.

The EFF Subpoena Defense Attorney List
The EFF’s press release about the case.


F-bomb Trademarks

One of the several reasons your trademark might be refused registration by the USPTO is that your proposed mark is scandalous or immoral. Without too much further explanation you might guess that a certain word starting with “F” and rhyming with “duck” might be problematic as a trademark. You would be right. Trademarks can be refused registration for being scandalous or immoral. Now you might think that this is America and you can say what the F— you want, and you can. But at least for now, you aren’t going to get the US government to help you protect that as a brand name.

But many people do try anyway. In fact, if you search the USPTO for applications for marks containing that word, you will see nothing but refusals (were 0 for 53 so far), probably causing the applicants to shout . . .


Trademarks and Oil Spills

The Twitter account @BPGlobalPR has more followers than the real BP Twitter account. Yes its fake and they use the BP name and logo. The tweets are both biting and funny, at least to people who don’t work at BP. But is it trademark infringement?

If trademark law exists primarily prevent confusion in the marketplace and to let companies control their own reputation, then probably not. Does @BPGlobalPR tarnish BP’s brand? Probably, but it seems as though everyone knows its a parody, and how could you not with tweets like:

“We feel terrible about spilling oil in American waters, we’ll make sure the next spill happens where the terrorists live. #bpcares”

“Please help us with rebranding. We’re not calling it an “oil spill” anymore, now it’s a “Southern Fun Party”. #bpcares”

So, if a decent trademark infringement or dilution claim could be made, BP might ask themselves, “should we?” The answer to that might be “no.” The fallout from a trademark lawsuit now could be worse than the tweets. (See Streisand Effect) It might make it seem like BP is trying harder to plug the word leak than the oil leak.

The value of a trademark is based in large part on the reputation of the company. To BP’s credit, it seems as though their tweeting has been pretty focused on keeping people updated about the oil spill. This might be one time where protecting a trademark might be done best by letting people vent and take a few jabs.

UPDATE/CLARIFICATION: I am pretty sure that this wouldn’t be a good trademark case for BP anyway. It is such a clear parody as well as a non-commercial, non-competing use. However, there have been some inconsistent results in the area of trademark parodies. Sometimes judges as well as brand owners just don’t have a good sense of humor. Thanks to @cathygellis for the reply tweet and comment.


Sunshine Week is March 14-20

“Sunshine Week is a national initiative to open a dialogue about the importance of open government and freedom of information. Participants include print, broadcast and online news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know.” See more information at www.sunshineweek.org
Your Right To Know


Corporate campaign litigation comes to Minnesota

The Minnesota Chamber of Commerce has filed suit to in the wake of Citizens United v. Federal Election Commission. At stake is to what extent the State of Minnesota can continue to regulate corporate expenditures on campaign advertising. Here is the article which includes a link to the complaint.


Trademark Parodies

A post on Duets Blog got me thinking about parodies and trademarks. What is interesting about this area of law is that parodies of brands are commonplace, but on they are given only narrow exemptions within the law.

Take for example the number of gripe websites. This guy rips on Wal-Mart with his “Wal-ocaust” and “Wal-Qaeda” website. PETA has a website that uses the domain name murderking.com . In fact there is a website that just links to other gripe sites. Gripe sites are typically legal, because the trademarks are used to refer to the company and to comment on that company.

But parodies are often done without any serious criticism in mind. Walk through any mall and there are dozens of spin-offs of well known logos and brands that are misspelled for comic effect. Some are pretty clever too. A quick Google image search for “parody t-shirts” comes up with an “evil” version of the Levi’s logo, an AD/HD version of the band AC/DC’s logo, “Boring” and NASCAR, a Smurf and Simpsons version of the Soprano’s, a variety of versions of the Obama “Hope” logo and more. These parodies are commercial by nature and don’t always seem to be truly offering criticism of the trademark owner, which can cause trouble.

Even where lawsuits have successfully stopped parodies, they seem to persist. For example, a maker of a tee shirt reading “Enjoy Cocaine,” a parody of the iconic Coca-Cola design was successfully sued and ordered to stop making the tee shirts. See Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972). Well over thirty years later, the same design can be found all over the internet.

Its hard to believe that many of these sales are likely to change the public’s perception of the trademark owner or that sales of tee shirts are damaging to their bottom line. Parodies occupy a large part of pop culture, but unfortunately sometimes operate in a gray area of the law.


MPR Reporter Accused of “Hacking”

Texas based Lookout Services has accused a Minnesota Public Radio reporter with violating the Computer Fraud and Abuse Act. The reporter was doing a story about how Lookout had exposed the private data of a number of Minnesota consumers. Apparently doing your job as a reporter carries with it the risk of being a “hacker.”

The Computer Fraud and Abuse Act has both civil and criminal provisions and prohibits the “unauthorized access” of a computer. The phrase “unauthorized access” is pretty vague and has allowed prosecutions to go forward for such things as creating a phony Facebook account as Lori Drew had done to harass her daughter’s classmate. But unlike the Drew case, there is the new twist of a reporter doing the unauthorized accessing. So, which should be more important: a company’s right to be secure in its data, or a journalist’s right to discover and report? If the reports are true, perhaps a company should be expected to take reasonable security precautions before having CFAA remedies available.

See more at the MinnPost article.