Wednesday, December 4, 2013

#LikelihoodOfConfusion... for Blog Satire? #what??



You read the title to this post, you know the result: the plaintiff loses. At least, you knew the result if you know anything about Section 43 of the Lanham Act (15 USC Section 1125(a)(1)). #TrademarkLaw #LikelihoodOfConfusion.

Corsi's Novel
Here's the story in timeline form:
1. Demand for Obama birth certificate hits. #MediaCircus
2. Pundits debate his birthplace (enter stage right, Jerome R. Corsi and Joseph Farah)
3. News cycle gets real birth certificate, debate over.
4. Corsi and Farah, continue debating anyway, publish the book (see right) 2-3 weeks after No. 3.
5. Farah is lampooned by Esquire, which jokingly announces he's going to "pulp" all printed copies and refund purchases.
6. Corsi and Farah pursue Likelihood of Confusion claims, among others.
7. They lose.
8. They appeal.
9. They lose again. (case name: Farah v. Esquire Magazine, Court of Appeals, Dist. of Columbia Circuit 2013)

Why did they lose? Because Likelihood of Confusion (here, argument was that people are too gullible to understand satire isn't truth, ala "The Onion" used as a news reference) requires that the confusing use be "on or in connection with any goods or services." Not too complicated. Use on satirical blog post that doesn't advertise any particular good or service and is not use in connection with a good or service. #DeductiveReasoning. As the court said "[e]very circuit court of appeals to address the scope of these provisions has held that they apply only to commercial speech" (emphasis added).

It's right there in the statute, guys.

Of course, I should not expect the plaintiff to see the obvious dismissal for failure to state a claim (Fed. R. Civ. P 12(b)(6)) given the political climate and cross-aisle vitriol. Of course, it could just be a fundamental misapprehension of the rights and remedies they had by publishing a hot topic novel about what is seemingly an incontestable truth (the birthplace of the Leader of the Free World being within the United States of America). So, maybe I should temper my expectations.

After all, not everybody understands the law...