Bernie Sanders' Campaign Joins Too Many Other Presidential Campaigns In Abusing Trademark Law
from the so-presidential dept
I shouldn't have to start this post this way, but after someone flipped out in my last post about the treatment of Hillary Clinton and her emails, accusing me of being nothing more than a "BernieBro," I'll just make this explicit: I don't currently support any of the current Presidential candidates, and am pretty sure I've mocked all of them for ignorance around issues that concern those of us at Techdirt. Either way, I wonder how the guy insisting I was just a secret Bernie supporter will respond to this article...Yes, because now Bernie Sanders' campaign is the latest in a long list of presidential candidates to abuse trademark law to try to stifle criticism. His campaign joins those of Hillary Clinton, Ben Carson, Ron Paul and more as presidential candidates, past and present, abusing trademark law.
In this case, Sanders' campaign apparently went after Dan McCall, who was also on the receiving end of the threat from Hillary Clinton's SuperPAC (oh, and also the NSA went after him over trademark as well). Specifically, the Sanders campaign threatened him over the following graphic:
Section 43(a) of the Lanham Act (15 U.S.C. § 1125) prohibits use in commerce of “any word, term, name, symbol or device . . . which is likely to cause confusion, or to cause mistake, or to deceive as to the origin, sponsorship or approval of his or her goods, services, or commercial activities by another person.” Your use of the Official Logos is likely to cause exactly such confusion. Additionally, by using the distinctive logo of Bernie 2016, Inc., Liberty Maniacs has violated the U.S. Copyright Act (17 U.S.C. § 501) and is liable for falsely applying the Bernie 2016, Inc. name and logo to Liberty Maniacs’ products. 17 U.S.C. § 1202. This list of Liberty Maniacs’ unlawful conduct is not exhaustive.So this actually goes beyond just trademark law to copyright and election law. Which is insane. There is no confusion here. The image is clearly protected expression. No one is going to be "deceived" into thinking that Sanders supports this image or that it's from his campaign. The lawyer, Claire Hawkins, from Garvey Schubert Barer, also lies about what the campaign's obligations are:
As an intellectual property owner, our client is obligated to take steps to protect its trademark and copyright rights and to protect the good will built up in its name and brand.First of all, that's not even remotely true when it comes to copyright, where there is no obligation to protect. On trademark, there is an obligation, but it's quite frequently overstated. It doesn't mean you have to block any use -- especially when those uses are clearly non-infringing.
Thankfully, Dan McCall has Paul Levy as a lawyer (disclaimer, he's represented us as well), and Levy has responded and, as always, Levy's letters are well worth reading. It opens with the following line:
Bernie Sanders should be ashamed of your trademark bullying on his behalf.And then...
It is your contention, apparently, that an ordinary and reasonably prudent consumer would tend to be confused about whether it is the Sanders campaign that is promoting Sanders' candidacy by associating him with the 19th Century theoreticians of the communist movement as well as with three ruthless Communist Party dictators.Levy also explains fair use and the First Amendment to Hawkins. He also points out that while the letter talks about copyright, she never mentions what the campaign is talking about:
That contention is absurd. You cannot use trademark theories to silence members of the American public who disagree with your client's views and oppose his candidacy. They can hardly express their views in that respect without identifying the candidacy about which they wish to speak; and it is precisely because the logo is so recognizable that it is an excellent way of specifying which "Bernie" is the subject of commentary. Moreover, it is very common for people to express their views about presidential candidates, completely independent of the campaign; such expression is so common that it defies belief that a reasonably careful consumer would believe that a shirt or bumper sticker associating your client with Communists necessarily came from the campaign itself.
Your letter also refers in passing to your client's ownership of the copyright in logos; the PDF of the letter was labeled "Notice of Copyright Infringement," and that characterization was in the subject line of the email by which you transmitted the letter. However, you do not say that the copyright has been registered. Not only would you need to register the copyright before you can file suit for its infringement, but any such suit would run directly into the copyright fair use defense, which is heightened in the case of an obvious parody like this one....It goes on beyond that as well. If history is any indication, the Sanders campaign will likely back down, because that's its only non-insane move to make in this situation. Of course, it would have been much smarter to never have sent such a letter in the first place.
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Filed Under: bernie sanders, dan mccall, first amendment, free speech, presidential campaigns, trademark
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Another One Bites the Dust
I can't imagine any regular reader of your stuff suddenly changing his/her point of view to incorporate that belief based on an absurd, single rant.
Sad to find that the one guy I thought had at least a remote shot at maintaining some dignity during a Presidential race is being served by asshats who pull this kind of crap. Burn, Bernie, burn!
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Re: Another One Bites the Dust
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ha ha ha...
There are quotes too numerous to count against this foolishness, but here is one that stands out well in the crowd.
I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.
~Thomas Jefferson
America has become more progressive over time, seeking to destroy itself, by believing that they can vote in people like Hillary and Bernie that promise to take care of them.
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Re: ha ha ha...
Certainly you agree that this country has been self destructing under the present what ever you want to call it system for some time. Trickle down? - yeah right, that has worked out so well, for the elite ruling class. Supply side? - laughable but not workable.
Anyone aware of the past certainly can see the present and near future hold little to nothing for anyone other than the top 1%, and yet some continue to make rationalizations for and criticize all who suggest and/or attempt to make things better. Status Quo thinking is not going to help anything.
Remember kids, providing for the common needs of society, like roads, utilities and other infrastructure via taxation is bad - private individuals, corporations and tax exempt philanderers have your best interests in mind, they would never screw you over for their benefit. All heil our benevolent overlords.
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So honest he will abuse trademark law to silence dissent? Please, put the "Cool-Aid" down! Where are intellectually bankrupt people like you created?
Bernie and Hillary are darlings of the corrupt economy you claim to hate, but I am not shocked you are too stupid to know any better. They only talk trash about capitalism to sucker derps like you into voting for them. They have no intention of doing anything other than creating more regulation to dupe you into thinking they are doing something while also putting in every loop-hole necessary to keep their business buddies happy so they will keep contributing to their party and campaigns.
No wonder America is going to hell, too many easily fooled suckers like you begging for help from a government that will only take from you instead of getting out and doing for yourself!
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You're assuming Bernie initiated or approved this letter, which is a fact not in evidence.
I'm sure Bernie has plenty of supporters that are capable of screwing up on his behalf without his knowledge.
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If lawyers are acting appropriately then nothing they do should run counter to the wishes of their client, if they are doing otherwise that's a good indicator that either they need to be replaced, or have their leash shortened.
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Lucky for you, freedom of expression does protect absolutely ludicrous and ill-informed statements about freedom of expression.
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Unfortunatly Nomad, you have made an error.
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I'm not sure what definition of 'parody' you're using, but given I'm pretty sure the majority of parody is 'negative' at least in the sense that the one being parodied probably isn't too thrilled by it, if you weren't allowed to parody someone 'in a negative sense' that would rather gut the ability to make parodies.
Parody tends to range from 'poking fun' to flat out mockery of the subject matter, that's the purpose of parody, to take the original and twist it, often doing so to highlight some absurdity or flaw in the original.
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Politicians aren't immune from mockery and parody, and in fact as I understand it thanks to their position they are less protected from such than your average citizen, due to being public figures.
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You are totally wrong, we politicians have total protection from criticism.
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Your memory is very, very wrong.
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I'm not sure what you mean here, but if you mean that parody that is mean to the subject is not protected speech, then you are incorrect.
"Considering what Sanders is up against in this election, even if he is silencing this 1 person [...]"
It seems like you're arguing that he is such a good person and is fighting such a good fight that he has earned the right to abuse the law? I don't think even Bernie Sanders himself would agree with that.
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"You're positive our lawyers are on /our/ side, right?"
As far as countering parody by pointing out that it is parody, and not a real reflection of the actual stance the candidate holds, 'People might not be able to tell the difference between the two' is probably not the best way to go about it.
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Re: "You're positive our lawyers are on /our/ side, right?"
Such an attack is easy to shrug off if it comes from Trump or Cruz or the Tea Party. It's a lot harder if this logo becomes a meme with corresponding merch and marketing. They probably see this as a "Swift Boat" or "Willie Horton" level threat to their candidacy.
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Re: Re: "You're positive our lawyers are on /our/ side, right?"
Those never even crossed my mind. Good point...
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Bernie is willing to cross the line when he wants.
Bernie Sanders is, at very best, the least of available evils. But he is forged from and works within the same political machine that produced our previous monstrosities of administrators. There's no reason to believe that he'll be significantly different.
He's not the real deal any more than Mr. Hope and Change proved to be.
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Re: Bernie is willing to cross the line when he wants.
Yeah, but we did get to do first-black-President. In the current circumstances, I prefer first-Jew to first-woman, and neither brand of hate-mongering appeals from the other side.
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Re: Re: Bernie is willing to cross the line when he wants.
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Re: Re: Bernie is willing to cross the line when he wants.
The problem is he's a terrible president. What I remember from his presidency is:
~ promising to be transparent and yet having an opaque administration than even president Bush.
~ Allowing and trying to justify the CIA extrajudicial detention and interrogation program or the CIA drone-strike program.
~ Promising protection for whistle-blowers and then jailing them and refusing to pardon them even when it's clear they're on the right side of history.
~ Unflinchingly endorsing the surveillance state
~ Unflinchingly endorsing the corporate state (and the TPP)
~ Saying I welcome the debate when he really doesn't welcome any debate and is going to justify doing what he wants.
Either Obama is a downright scary, terrible president or it is impossible for anyone in the oval office to not be a scary, terrible president, because they administrate with a gun to their heads.
I suspect the latter is much more likely the case. We can only expect that Bernie or Hillary or Trump or whoever will go in there and be introduced to the gun. And whoever it is will also be a terrible president.
Granted, for some issues, I tend to run more liberal than conservative. I tend to want more abortion and birth control access and less money going to churches.
But those issues seem trivial to our mass surveillance and our extrajudicial torture and our mass murder programs abroad. The United States is totally the bad guys now. We fit right in a line with Lenin, Stalin and Mao.
And if Bernie gets elected, he will too.
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Of course, maybe this was a reverse-Streisand, and Bernie wanted the image to be widespread to mock McCall or something. Just a thought.
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This whole "ends justify the means" argument is despicable. It's the exact sort of mindset that is characteristic of the political establishment.
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I think you underestimate the intelligence, or lack thereof, of a typical American. I can see people absolutely thinking this is an official poster put out by the Sanders campaign.
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Socialism has everything to do with communism. As Lenin said, the goal of socialism is communism. You cannot have a socialist country without a big, powerful government.
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and I'm guessing that refuting any of them would be a waste of time.
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It is happening nonetheless...
Nevertheless, Sanders' legal team went after this guy. If it accomplishes anything, it just might educate him on the vast differences between Communism and Socialism. As for Parody? I found nothing remotely funny in the meme. It is obviously designed to injure the campaign, but Sanders should have been able to rise above this - he has been attacked for being Communist almost his entire political career.
Maybe, just maybe Bernie Sanders was sitting at his morning coffee and said in that trademark-able voice of his, "I am so sick of this shit. Girls / Boys, go get him!" I could see that happening.
A cure for that might be to send people like Dan McCall to a Democratic-Socialist country. I'm not saying fly them to Norway, Sweden, Finland, Denmark, Holland... ENGLAND etc., but put on a bus to Canada and let them stay there for a week. Maybe they'll have an accident and get to explore the medical system. McCall might see just how friendly a bunch of C̶̷o̶̷m̶̷m̶̷u̶̷n̶̷i̶̷s̶̷t̶̷s̶̷ Democratic Socialists are. Through not engaging in War all the time, Canada is evolving, albeit glacially, into an half decent country as well. We are talking about a political system that is an hundred plus years old, and not the hundreds of years of political evolution like the aforementioned. Not every War is a Just war, so most of them are unnecessary. This in my opinion, retards the growth of decent political, and social systems in the US. And,right now, there are so many sociopaths running for POTUS right now, it's considered acceptable to make assaults in every way conceivable, on every sense of every voter. Sometimes, things just aren't that funny. For example, every time John Kasich opens his mouth, it is an assault on the opposite sex. It is with him so habitualized, he does this without even thinking - it is subconscious. Donald Trump goes out of his way to be an asshole to everybody and anything, and it has been his way of doing business his entire life; this is just unconscious knowledge, yet to him, everyone and everything is, "... [t]errific, just terrific." He comes of as the working man's man, but no reporter or article has ever mentioned the ten million dollar loan from his dad, that was used to get him started. I am not speaking of different levels of classification regarding Hillary Clinton's private emails, or that evil little Goblin Ted Cruz. All of them are bad... why do I think Mike Masnick is an undecided voter??? Sanders is trying to run an educated campaign, and he has garnered a huge amount of support. I can see his legal team defending him even if he eventually saw the matter after this whole legal battle began to transpire. Nevertheless, he's nothing like the rest of them.
Either way, it is after the fact, and one way, or another, McCall is going to pay for his intent to harm, or by having no idea what parody or humour is, or Communism for that matter, harm the senses of Sanders voters, and swing the voting public at large.
I could use ten million dollars about now, how about you?
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Bernie StreiSanders much?
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Wyden 2020 man! Everyone knows where your support is at, I doubt you would let Bernie, Hilary, Donald, or Ted make a guest post here... Wyden? Been there, done that!
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On a separate note, am I the only one who thinks he should choose Wyden as his VP?
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Nonetheless, it needs to be called out. As a bonus, how Sanders responds to this will tell us all something about his style.
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Id he cannot manage the campaign, or find people who do things in the way he wants, how will he manage the country if elected?
Things like this show just how absurd politicians promises are, as they cannot actually deal with everything that they claim they will deal with.
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There IS actually a chance of confusion and parody.
Definition LimpBalls Belt:
The geographic area of the United States where there is only one rock and roll radio station, and it plays the syndicated Rough LimpBalls propaganda show, every day during the work hour. Estimates vary, but this may account for as much as 25% of the total geographic area of the United States.
The existence of the LimpBalls Belt can be attributed to the 1996 Telecommunications Act, signed into law by Bill Clinton, which allowed for massive aggregation of media outlets resulting in a more homogenized, polarized U.S. culture.
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As I've said over and over and over again, your reputation is more influenced by your own conduct than by what others say about you. Therefore, when someone lies, exaggerates or makes unwelcome comments about you, their message will only appeal to those who are willing to believe them.
No Bernie supporter is going to change his or her mind over that graphic because they've no doubt seen those comparisons made before, but the campaign's response to it might make some people reconsider. None of us like attempts to clamp down on free speech.
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But many not-so-knowledgeable people on the fence that think this is a legitimate campaign poster might.
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The wrong way to counter it is to abuse the law to suppress it.
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Mind-changes based on graphics
For a significant portion of the US voter population, the political conversation is based on who's more handsome, has a simpler, easier name to pronounce / spell, and who can make the other guy sound worse.
Remember that the whole swift boat affair was based on a medal-honored vet seeing action and having objections to the war he was fighting. Contrast that to the other guy who dodged the war by getting admitted into the champagne-squadron of the national guard.
We turned a medal-honored vet who dared to have an independent thought into a campaign smear, and the people of our nation at large bought it without thinking on what it meant.
That is altitude at which our campaigns are fought.
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Re: Mind-changes based on graphics
The dog whistle has a variety of tunes, it seems, but it's a dog whistle nonetheless.
This doesn't mean we can't criticise the man: he persecutes whistleblowers, signed off on drone strikes against American citizens, has few problems with mass surveillance, is pushing corporate takeover deals AKA TTIP, TPP...
Criticise him in the right way and for the right reasons, is what I'm saying.
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Dog-whistles and smearing.
I was a true Obama hope and change believer, and feel personally betrayed by his administration's reversal on his campaign visions. I've made the list recently.
But I'm pretty sure most of the ordinarily schlubs of the US don't operate at that level, as much as I would like them to... or to be proven wrong.
Yeah, Kenyan muslim may seem a more legitimate gripe than Hawaiian Black Guy (It's not.) but a lot of dog-whistle politics trigger at the non-conscious level of product fluffing and negative campaigning.
How I wish for a more self-aware people. Training people to be just that is part of my job.
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from an iphone/ipad/mac-air
while sipping machiato in starbucks...
PRICELESS!!!
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"Redistributionist"
Most of us, by far, don't have apple devices nor can we afford starbucks.
And frankly, a smartphone in every hand would facilitate what the UN has determined should be inalienable human rights, e.g. the right to make informed decisions about one's own destiny.
Beware of class-war rhetoric, because not discussing frankly our wealth disparity will lead to... a class war.
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