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Trademark Defamation! What’s Next? |
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Written by Richard Weisgrau
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Sunday, 05 February 2006 |
The House of Representatives passed H.R. 683, the Trademark Dilution Revision Act of 2005 as an amendment to the 1946 Trademark Act. H.R. 683 has been sent on to the Senate for action. If passed by the Senate, the President will undoubtedly sign it into law. My concern about H.R. 683 is that it seems to open a door for suing a photographer on grounds that amount to defamation of a trademark.
On my first reading, H.R. 683 seemed to be unproblematic for photographers. Then by applying both experience and a bit of imagination, I found part of the legislation to be potentially harmful. That part has to do with what the legislation terms Dissolution by Tarnishment. My letter to Senator Orin Hatch explains my reasons for concern.
Is the sky falling on photographers? No, but the legislation could spell disaster for unfortunate photographers who run into aggressive trademark owners. During my tenure as executive director, ASMP monitored and advocated in a number of situations in which trademark owners attempted to stop photographers from publishing photographs containing the owners’ trademarks. Those owners were never successful, but they did not have the advantage of the Tarnishment provisions Trademark Dilution Act of 2005. While different in nature, Chuck Gentile ran head on into a very aggressive Rock and Roll Hall of Fame in a trademark dispute. Chuck won the case on appeal but went out of business defending his rights. I think H.R. 683 could put some photographers in the sights of aggressive trademark owners. I am sure few of us, if any, could financially withstand a prolonged legal battle with a big corporation.
H.R. 683 has exemptions that would protect most photographers in most situations. But those exemptions do not offer the full range of protections that photographers ought to have. Without intent, we could capture trademarks in photographs of ugly, controversial, socially and culturally alarming, etc. subjects. By publishing a photograph that contains a trademark of a company that doesn’t like having its trademark appear in such a manner, any one of us could become the victim of a lawsuit, if H.R. 683 is enacted into law as is. We should never lose sight of the fact that creative attorneys can often make cases out of any law when their clients want it. We do not need a law that makes it easy for them.
As of this time, I do not see evidence of photographers’ organizations reacting to H.R. 683. I suspect that is due to one of two reasons. Either I got it dead wrong, or they did not consider a worst-case scenario like pseudo defamation lawsuits by trademark owners. If you are a member of a photographers’ organization, you might want to direct them to this article. If they disagree with me and convince me that I am dead wrong, I’ll actually feel relieved.
(c) 2006 Richard Weisgrau [contact] [bio] |
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Last Updated ( Friday, 17 February 2006 )
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