Homeland Security Totally Misunderstands Trademark Law; Seizes Perfectly Legal Sporting Goods Anyway

from the because-fuck-you,-we've-got-guns dept

Mon, Feb 2nd 2015 10:22am — Mike Masnick

Homeland Security's Immigration & Customs Enforcement group (ICE) has a history of seizing stuff without understanding even the most basic concepts around intellectual property. After all, these are the same meatheads who seized some blogs for alleged copyright infringement, and then had to return some of them over a year later, after they realized it was a mistake. ICE also has a history of using big sporting events to kiss up to the multi-billion dollar sports organizations by shutting down small businesses, protecting Americans from unlicensed underwear. And, of course, what bigger sporting event is there than the Super Bowl. Every year they make a bunch of seizures related to the Superbowl, and this year was no different.

ICE agents gleefully were patrolling Phoenix looking for clothes to seize. But there was just one, rather large, problem with how they went about it. It appears that the people in charge of all this, didn't know the first thing about the "law" they were supposedly enforcing. Seizing counterfeits is about stopping trademark infringement. But not everything using a trademark is infringing. Trademark, after all, is a form of a consumer protection law, designed to protect people from buying one thing, believing it's another. If there's no likelihood of confusion, then ICE isn't supposed to be seizing it (and, yes, there is also dilution of trademark, but ICE isn't supposed to be seizing products that dilute someone's trademark -- just those that are "counterfeit"). But that's not, apparently, how ICE sees things:

The profane debasing of a mascot — and really anything that denigrates a team — is guaranteed to be contraband, said Daniel Modricker, a spokesman for US Immigration and Customs Enforcement. That “Yankees Suck” T-shirt you put on for special occasions? If it uses anything that looks like a team or league logo, it probably constitutes trademark infringement.

Almost all of that is wrong. Using someone else's trademark to comment on them is a perfectly legal use -- and not at all counterfeit. Pretending otherwise gets into some pretty sketchy First Amendment areas, as using a trademarked word, phrase or image to criticize someone is considered protected. But, not to ICE. As Rebecca Tushnet explains:

"Profane debasing"--and when did mascots become sacred?--is not confusing. I don't think ICE has authority to seize diluting merchandise, and anyway very few of these will be using the profaned mascots "as a mark," meaning the dilution exceptions for parody and criticism apply. This is a blatant misunderstanding of the law, being perpetuated by a federal official with only the small reassurance that federal agents won't come down and rip a previously purchased shirt off your back.

Of course, the small time vendor with a table on the street isn't likely to challenge the federal government for stealing his perfectly legal shirts that "debase" a mascot. So ICE's Daniel Modricker gets to spew his ignorant and wrong statements and get away with it. Because ICE is ICE, and this is generally how it goes about its business. It has the guns and it gets to decide the law, no matter what the Constitution has to say about it.

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Filed Under: counterfeit, daniel modricker, dhs, first amendment, free speech, homeland security, ice, mascots, seizures, super bowl, trademark

40 Comments

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Ninja (profile), 2 Feb 2015 @ 9:13am

The profane debasing of a mascot — and really anything that denigrates a team — is guaranteed to be contraband

Let me have a minute while I contemplate the absurd in this sentence.

...

Ahem. Parody? Satire? Joke? It's not that subtle for the Police State it seems.
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Anonymous Coward, 2 Feb 2015 @ 10:42am

Re:
Ahem. Parody? Satire? Joke?

Those are not allowed in a police state, along with hyperbole, metaphor, and other forms of expression that require intelligence to interpret. Every statement a person makes will be interpreted literally, especially if that means the state can take action against them.
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nasch (profile), 2 Feb 2015 @ 10:52am

ICE
Shouldn't ICE be looking for this stuff at the border (if at all), rather than the stadium? If it's produced domestically I don't see that they even have the jurisdiction to do anything about it - even if it were trademark infringement.
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AJ, 2 Feb 2015 @ 10:54am

When the people enforcing the law, don't understand the law, who protects US from THEM?
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That Anonymous Coward (profile), 2 Feb 2015 @ 11:01am

The only profane debasement happening is what these people charged with upholding the law are doing.
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Anonymous Coward, 2 Feb 2015 @ 11:05am

Is the phrase 'Immigration and Customs Enforcement' trademarked? Because I want to make a T-shirt that reads 'Immigration and Customs Enforcement Sucks'
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Anonymous Coward, 2 Feb 2015 @ 11:13am

Police involment over trademark issues only seems to ever happen when there is a wide gap between the wealth and power of the complaining party and that of the accused party.

But then isn't that how "justice" usually works?
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nasch (profile), 2 Feb 2015 @ 11:16am

Re:
When the people enforcing the law, don't understand the law, who protects US from THEM?

Gun rights advocates, here is a setup for you. ;-)
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Anonymous Coward, 2 Feb 2015 @ 12:08pm

Re: ICE
Shouldn't homeland security be looking at stuff related to ... national security (and not protecting corporate profits).
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nasch (profile), 2 Feb 2015 @ 12:23pm

Re: Re: ICE
Shouldn't homeland security be looking at stuff related to ... national security (and not protecting corporate profits).

They actually describe these issues as a matter of national security. I wish that were a joke.
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Anonymous Coward, 2 Feb 2015 @ 12:24pm

Re:
"who protects US from THEM?"

Lawyers, meaning "Show me how much you can pay and I tell you what rights you have."
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Padpaw (profile), 2 Feb 2015 @ 1:18pm

sounds like they went shopping for stuff they wanted for themselves. It's not like the people who owns said gear will refuse handing it over to heavily armed thugs who they know are liable to shoot them if they refuse
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Padpaw (profile), 2 Feb 2015 @ 1:19pm

Re:
personal firearms protect you from an out of control government. Or peaceful protesting if you want to believe that
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Anonymous Coward, 2 Feb 2015 @ 1:48pm

Re: Re:
The 2nd is there to better protect the rest... is it any wonder it is under the MOST assault?
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Anonymous Coward, 2 Feb 2015 @ 1:53pm

and guess how many of those 'contraband' seized items were immediately/privately sold on Ebay by the Ice 'enforcers' ? yep..all of them.
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nasch (profile), 2 Feb 2015 @ 3:13pm

Re: Re:
personal firearms protect you from an out of control government.

Not to start a flame war, but do you know of any incidents of people successfully defending themselves from the government using guns? Maybe that thing with the illegal grazing in Nevada, I didn't hear how that turned out.
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Anonymous Coward, 2 Feb 2015 @ 3:14pm

I think I've figured out that a high IQ is an automatic disqualification for employment by ICE, just as for some police forces.

Profane debasing mascots actually sounds rather fun. It ought to be taught in schools, like critical thinking (obligatory obscure reference to the time the Texas Dept Ed was encouraged to ban teaching of critical thinking because it 'challenged parental authority' - which is what I thought children were for).
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nasch (profile), 2 Feb 2015 @ 3:14pm

Re: Re: Re:
The 2nd is there to better protect the rest... is it any wonder it is under the MOST assault?

It seems to me the 4th is under even more pressure, though the disagreement could be more a result of what each of us pay the most attention to than actual facts.
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Anonymous Coward, 2 Feb 2015 @ 3:29pm

>...dilution exceptions for parody and criticism apply.

My favorite parody shirt involves AT&T. The one where the bald eagle with red glowing eyes is grasping all the telcom cables with it's talons. The eagle is wearing a AT&T shield stamped on it's chest. No doubt ICE would taser and rip that shirt off you if they saw you wearing it around in public.
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Hans, 2 Feb 2015 @ 3:40pm

Re: Re: Re:
Not sure if it meets your criteria, but there were a few little skirmishes that started with a tax protest and escalated to boycotts, and brewing some tea in Boston Harbor.

It does seem to have changed the history of the world, though.
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Zonker, 2 Feb 2015 @ 3:43pm

...only the small reassurance that federal agents won't come down and rip a previously purchased shirt off your back.
I'm tempted to dare ICE to do this by sporting profane debasements of mascots with team logos on all my clothing at the Big Game next year, including underwear. Come on, I dare you to rip each infringing item off of me right there in the stadium.
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nasch (profile), 2 Feb 2015 @ 3:59pm

Re: Re: Re: Re:
OK sure. I was thinking of modern US history. Modern events in other countries could be interesting as well. The Arab Spring, for example, hasn't actually ended up that well from what I've heard.
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Anonymous Coward, 2 Feb 2015 @ 4:17pm

No Misunderstanding
Misunderstanding my ass. More like blatant lying.
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Anonymous Coward, 2 Feb 2015 @ 4:26pm

Re:
When war protester Cindy Sheehan attended Bush's State of the Union address and removed her jacket, revealing a printed T-shirt that the president's handlers didn't like, she was promptly arrested and taken to jail.
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Padpaw (profile), 2 Feb 2015 @ 7:33pm

Re: Re: Re:
The MSM does not report on most incidents since it is in their best interest to not let sheeple know some people do stand up for themselves. It might give the sheeple dangerous ideas if they learn people stand up for their rights against a corrupt government
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Anonymous Coward, 2 Feb 2015 @ 11:16pm

Re: Re:
Dissent is unpatriotic.
And if you don't see that, you will be joining an Attitude Readjustment Program at one of our FEMA camps.
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James Comey, 3 Feb 2015 @ 1:34am

Re: Re:
Thousands of Americans die at the hands of bad metaphors every year.
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Sheogorath (profile), 3 Feb 2015 @ 1:46am

Why not teach the ICE what's legal by using their logo on a T-shirt that bears the slogan "Commit bestiality - fuck a cop"?
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winston smith, 3 Feb 2015 @ 9:18am

Your Papers, and up against the wall
Most are not only criminal thugs, but stupid as well.

"Homeland," a new fascist creation seeking another way to control, suppress and intimidate in the name of insanity.
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BernardoVerda (profile), 3 Feb 2015 @ 7:16pm

Re:
Profane debasing mascots?

I might give that band a listen, just for the clever name.
(Unless they're Punk Rock -- what genre of music do they play?)
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Anonymous Coward, 3 Feb 2015 @ 9:37pm

Re:
I'll take 100. How soon can you deliver?
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Anonymous Coward, 3 Feb 2015 @ 9:40pm

Re: Re:
They're a Twisted Sister cover band.
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Anonymous Coward, 3 Feb 2015 @ 11:06pm

Re:
How much for the t-shirt?
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Pragmatic, 4 Feb 2015 @ 2:37am

Re: Re: Re: ICE
True. That's what happens when corporations run the government.
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Pragmatic, 4 Feb 2015 @ 2:38am

Re: Re: Re:
It has yet to protect us from anything.
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Pragmatic, 4 Feb 2015 @ 2:40am

Re: Re: Re:
Thank you.

There are fifteen holdouts remaining, per Wikipedia.

Gun rights do NOT protect us from an out of control government. It's been out of control since 9/11 and no gun rights group has done anything about this - apart from whine that gun rights are under assault.

Please don't take this as a call to violent revolution, I happen to think that's a stupid idea and that we would lose. You fight this crap at the ballot box, not with bullets.
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David, 4 Feb 2015 @ 3:00am

Re: Re: ICE
Corporate profits are what allows your congressmen to pay for their security personnel. This frees up the police for keeping the rabble in check. How is that not a matter of national security?
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David, 4 Feb 2015 @ 3:05am

Re: Re: Re: Re:
You fight this crap at the ballot box, not with bullets.

Good luck with that. Even if there were significant options for voting, the system is officially rigged. At the end of each election you get the results people voted for ("popular vote") along with what they actually get instead.
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Pragmatic, 4 Feb 2015 @ 5:31am

Re: Re: Re: Re: Re:
Okay, let's deal with that. We beat SOPA by getting enough people angry about it. The current left/right divide convinces enough people that their side wins by cheating to allow this to continue, so they don't care enough to take it on.

We need to convince them to care enough to take it on.

Remember Kshama Sawant?http://en.wikipedia.org/wiki/Kshama_Sawant

She's a damned socialist! And she got elected to office because enough people wanted her in. We CAN do this if we get enough people to care enough to vote for a real alternative. Negativity never achieved a thing. Let's be positive, make plans, and effect the change we want.
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Anonymous Coward, 4 Feb 2015 @ 4:05pm

Re: Re:
3 - 5 years.
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