It used to be simple. If you were a trademark lawyer you were one of the good guys. Representing legitimate consumer goods companies your job was to regulate the marketplace, to protect consumers against the unfair business practices of counterfeiters and others who sought to confuse or mislead consumers.
There was even an umbrella term to make you feel good about yourself and your efforts. As a lawyer your were seeking to prevent unfair competition.
Oh sure, every once in awhile some overzealous brand owner would try to beat a competitor over the head with trademark law. If the competitor was little the trademark club might work. But the instances were relatively few and the First Amendment portions of the federal trademark act were little noticed, and little used.
Then came the Internet. The old rules (written and unwritten) have been strained ever since! Instantly, anyone can be an author or a critic. And many of those same blue chip companies are very thin- skinned.
So, when these blue chip companies find themselves the target of criticism, by their customers or the larger public, they run to their lawyers for help. As in DO SOMETHING!!
Sadly, many lawyers seem very willing to distort trademark law on behalf of those thin-skinned clients. The episode involving the company formerly known as Peabody Coal is but the latest example where trademark law doctrine has been misused in an effort to browbeat/bludgeon an Internet critic.
Peabody, one of America’s largest coal companies, is a member of the Consortium for Clean Coal Utilization (CCCU). The consortium includes several energy companies and Washington University of St. Louis. It was formed to promote research on clean coal technology. To broadcast their existence the CCCU created a website.
Clean coal is a term many folks believe to be a misleading oxymoron. In response to the formation of the CCCU one environmental activist created a spoof of the CCCU site. It mimicked the look and feel, identified the CCCU members by name, and used their corporate logos.
However, the tone and language of the spoof site made it perfectly clear that the opinions being expressed were not those of the CCCU members. Further, the spoof site was entirely noncommercial. The fundamental purpose of trademark law is to protect commercial transactions. Suddenly the First Amendment provisions of the federal law made perfect sense.
Except to the lawyers for Peabody. They were only too happy to write a cease and desist letter to the person who put up the spoof website. The letter was rife (inside joke) with distorted trademark law references. Although the site is still up the Peabody logo is largely covered with a big red CENSORED.

Once upon a time, when someone told me a story about a 5 million dollar claim for emotional distress, presented by a passenger on a bus after a fender bender accident, I could smugly distance myself from such actions. I would instantly think to myself: “Some lawyer had to buy into that nonsense in order for a formal claim to be brought. I’m sure glad that such nonsense does not go on in my corner of the legal universe.”
It was true then, and it is true now, sometimes being true to the profession means saying no.


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