Wednesday

SCORE AT THE END OF SEVEN INNINGS: FIRST AMENDMENT 25 OVERLY ZEALOUS BRAND OWNER 0

I don't know what the official tally really is. But when brand owners try to use trademark law to squelch public comment the results are predictable. The brand owner loses- loses face and loses the lawsuit. I haven't yet read the Wal-Mart WALHOCAUST decision but from the press reports it is another instance where one is left to ask" What were they thinking?"
From an insider baseball perspective my sympathies lie with the in house trademark counsel for Wal-Mart. I'm guessing that she or he normally toils away in relative obscurity. Engaged in the nuts and bolts of the practice- trying- with mixed success- to get the attention of senior management.
Then, without warning, all eyes are fixed upon she or he. One can imagine the comments. "This is an outrage" "It must be stopped"
So scrambling to preserve the integrity of... the brand? senior management?.... the law department?.... or???? and perhaps blinded by hubris- the inside lawyers huddle with outside lawyers- who, sensing the outrage, reflexively pick up the commercial law hammer as they go forth trying to convince every person with a gripe that they should see themselves as a nail.

Two years later a federal judge has imposed a reality check on Wal-Mart. Turns out it was not an outrage at all. In fact, the judge took the time to express his own indignation- if not outrage- at the dubious evidence that Wal-Mart offered to support its claim. Not only that but the opinion in this case may harm Wal-Mart in its climb up another trademark Mt.Everest. Their efforts to claim ownership of the yellow smiley face may have been torpedoed by the judge.

I must believe that Wal-Mart was told once, twice, two hundred times, that they had a less than 50% chance of winning. (Much less!!) So what is it that causes brand owners- and the law firms that advise them- to go down this path ? I don't know. But thank goodness for judges who understand that any erosion of our First Amendment is much more of a threat to Wal-Mart than the comments of a disgruntled shopper.

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