Ridiculously Thin Skinned Donald Trump Threatening Critics With Totally Bogus Trademark Infringement Lawsuit

from the so-presidential dept

So just last week, we wrote about the ridiculousness of Presidential candidate Ben Carson threatening a trademark (and copyright and publicity rights) lawsuit against people making Ben Carson (both pro- and anti-) clothing. And, now it appears that Donald Trump is doing the same ridiculous, censorious thing. Fresh off of threatening a completely bogus defamation lawsuit against a critical political organization, Alan Garten, one of Trump's lawyers, fired off a hilariously bogus threat letter to the website StopTrump.us. As you can probably guess, the operators of that site are not fans of Mr. Trump. And, of course, that's both completely allowed and encouraged in a democratic country with freedom of expression.

But not to Donald Trump or his censorious lawyers, apparently. They're claiming it's trademark infringement, as you can see in the ridiculous letter that was sent to the site. Garten throws out lots of scary sounding legal claims -- almost all of which are totally bullshit.

... it has come to our attention that you have registered the Domain Name STOPTRUMP.US and have made a deliberate attempt to sell T-shirts online using TRUMP and DONALD TRUMP brands without any authorization from Mr. Trump. Please be advised that the unauthorized use of this Domain Name infringes upon Mr. Trump's common law and statutory trademark rights in that the name Trump® is protected by US. Trademark Registration No. 3,526,411. Indeed, the Trump® trademark has even been declared "incontestable" by the US. Patent and Trademark Office pursuant to §1065 of the US. Trademark Act (15 U.S.C. § 1065). As such, your use of the Domain Name constitutes a violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), entitling Mr. Trump to recover (i) your profits, (ii) any damages sustained by Mr. Trump, and (iii) the costs of bringing an action against you (which may be tripled by the reviewing court).

Your registration (and use) of the Domain Name also constitutes cyber-piracy in violation of the US. Anti-Cybersquatting Consumer Protection Act, 15. U.S.C. § 1125(d). Like the Lanham Act, under Anti-Cybersquatting Act, any person who, in bad faith, registers a domain name that is identical or confusingly similar to the trademark of another person can be held liable for damages -- up to $100,000 per domain. 15 U.S.C. § 1117(d).

Scary, scary and completely bullshit. Law professor Eugene Volokh nicely dismantles Trump's trademark claims, pointing out that political criticism is clearly protected free speech and not covered by trademark. Even if it was, any such lawsuit would fail dreadfully. There's no likelihood of confusion here. There's no dilution (which "expressly exempts uses of a trademark for 'identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.'"). Volokh even leaves out the fact that the one registered trademark named only is for "Real estate services, namely, listing, leasing, financing, and managing commercial, residential, and hotel properties." Protesting Trump's political aspirations is none of that.

The cybersquatting claim is also a complete joke. There are so many cases on the books these days saying it's fine to use a trademarked name for criticism, as it's regularly approved for so-called "sucks sites," and there's no way that StopTrump doesn't qualify.

So just this week alone, we've seen Trump and his lawyers make completely bogus threats using defamation law and trademark law to try to stifle political criticism. What's next? Will he ask the FCC to silence his critics? Yup, that too.

I'm curious if there's ever been a Presidential candidate so thin skinned and so willing to make baseless legal threats to stifle pretty ordinary critics?

Filed Under: cease and desist, donald trump, free speech, political discourse, slapp, threats, trademark
Companies: stoptrump.us

Former Obama Official: Free Speech Ruling Hurts 'Public Civility' And 'Democratic Self-Government'

from the say-what-now? dept

Cass Sunstein, who recently got some attention for being a member of the task force President Obama asked to review the NSA's surveillance practices, is probably more well known as both a former Obama official and the co-author of the highly influential (if somewhat problematic) book Nudge (which has even inspired an entire organization within the UK government).

Sunstein has written a column for Bloomberg, which reads more like a #slatepitch -- taking something rather basic, and arguing a contrarian view solely for the sake of being contrarian. In this case, Sunstein is trying to argue that the key First Amendment ruling in New York Times v. Sullivan, which just turned 50 years old, has a "dark side."

As you hopefully are aware, NYT v. Sullivan established a key standard in defamation cases involving public figures, noting that for there to be defamation, there needs to be "actual malice." It was the first case that really recognized how defamation law and the First Amendment can clash -- and the Supreme Court set a much higher bar for defamation in order to defer to the power of the First Amendment. The ruling was both sound and quite important. It noted the chilling effects on free speech (and, specifically, a free press) that would result if anyone could be sued for a false statement made in the course of a political debate. Recognizing that it is entirely possible for someone to say something that is not technically correct, but without meaning to distort the situation, the court made it clear that for defamation to apply to a public official (who often had the means to respond to any false claims directly), there needs to be "actual malice" where the intent is to defame them, rather than just an incidental misstatement of the facts.

This ruling has been a key free speech ruling that has been helpful way beyond just the ability of the press to report freely without fearing a minor error will lead to a massive lawsuit and liability. But Sunstein, apparently, thinks we might be better off if there was a great chill in speech. Better, he seems to suggest, that millions be silenced out of fear of liability, than that a few people make minor non-malicious errors in the course of political debate:

But amid the justified celebration, we should pay close attention to the dark side of New York Times v. Sullivan. While it is has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government.

How is free speech a risk to self-government? Apparently it has something to do with mean talk show hosts and (gasp!) bloggers:

When it comes to public figures, all sorts of false allegations are permissible, whether they involve birth certificates, drug abuse, sexual misconduct or income tax fraud. One result is that those who seek public office put their reputation at immediate risk.

One of the goals of the court’s ruling was to protect self-government, but the effects on self-government are not all good. Talk show hosts, bloggers and users of social media can spread ugly falsehoods in an instant -- exposing citizens to lies that may well cause them to look on their leaders with unjustified suspicion.

After all of this, he basically says "ignore everything I just said" by then admitting that "the court got the balance right in New York Times v. Sullivan." It makes you wonder why he even brought this up in the first place. He insists it's because he wants people to recognize that NYT v. Sullivan, rightly or wrongly, "can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S."

Frankly, that's ridiculous. People always like to assume that political discourse has somehow reached a "new low" in their own lifetimes, often ignoring that political discourse in the US has been ridiculous from the very beginning. To blame the level of partisan rancor today on an important free speech ruling is based on nothing other than general contrarianism, rather than any sort of proof.

Filed Under: cass sunstein, defamation, first amendment, free speech, nudge, nyt v. sullivan, political discourse