Frankly, I think the website as currently published is out-of-bounds even without the movie. It makes no attempt to identify itself as a parody; I would have expected any legitimate parody to identify itself as such, perhaps in the page footer, also via at least some of the front-page links as well. The only way I can see for this site to be recognized as such is 1) to have read a report of it, as here, or 2) to recognize that links direct to two different hostnames and to track down the registrations to see that two different entities maintain them. Absent clear identifying evidence of authorship, this is not a parody.

Beyond that, is this site really even attempting to act as a parody? The clear intent behind the site is to deceive, not to respond via ridicule. Legally this is a case of dilution, both by blurring (”What’s the Chamber’s real position?”) and by tarnishment (in the eye of the Chamber of Commerce, at least). The impostors seem to be on the wrong side to some extent of every one of the considerations listed in 15 U.S.C. § 1125(c)(2)(B). To be sure, I’m not a lawyer, nor do I have anything other than a single semester in a law class and some self-education; it’s possible 15 U.S.C. § 1125(c) is preempted by 15 U.S.C. § 1125(d) given the latter’s greater specificity due to some rule of interpretation with which I’m not familiar. In absence of my knowing of any such rule, I assume explicit wording is required to find one section preempts another. 15 U.S.C. § 1125(d) requires “bad faith intent to profit from that mark”, which might arguably not exist here since the impostor site seems to have no links which might produce profits for them — but this parallel movie seems to demonstrate a clear intent to profit. In any case, one analysis of domain name/trademark dispute jurisprudence suggests, “Generally, use of a trademark to criticize is permitted, so long as there is no likelihood of confusion. Use of the trademark in the domain name, however, can create initial interest confusion and amount to blurring or tarnishing the mark.” There’s an awful lot of likelihood of confusion here; again, I’m not trained in law, but in my untrained opinion I’d even say this seems like a case for summary judgment.

Beyond the legal consequences for trademark dilution and such, and back in the realm of private actions, this looks to me like a simple case where the ICANN dispute process will result in the “parody” authors losing their ownership of the domain name.

(Where did I find all this information, not being a lawyer or trained in law, you might ask? Amusingly, I found all this information via the EFF’s own Trademark: Domain Names wiki page, coupled with a little US code perusal on the excellent Legal Information Institute’s US Code collection. The EFF does good stuff fairly regularly [although they sometimes go further than I think they should], but I’m having difficulty being charitable here by recognizing their arguments as even being made in good faith — although I wish I saw their motive, aside from the [charitably] tenuous one of being a group whose leadership/membership already tended liberal and thus presumably toward climate-change advocacy.)

They have to defend it or lose right to it.

Parody is no defense in a trademark fight (when you’ve used the actual mark).

But IANATL.

I guess this confirms that I was right never to get cozy with them.

I mean if these are the rules the Left is playing by, why not use these same rules against them (didn’t Alinsky have something to say about that?)? I think we need to consider the possibilities.

Just looked at the site. I tend to be a pretty big First Amendment guy in terms of political speech, much to the dismay of far too many here at RedState. This spoof is probably over the line, however.

But beyond appropriating the Chamber’s name, I think they may have really screwed up, badly. Go to the site again: http://www.chamber-of-commerce.us/090118tjd_prosperity.html

Scroll down and look in the lower left-hand navigation section. What do you see there?

That’s right, “sponsored links” from Avis, Monster, FedEx, Sam’s Club, and Budget (the car rental company). Umm, I’m pretty sure that those five corporations are NOT sponsoring this bit of satire.

Those five have had their business logos, names, and reputations hijacked as part of this satire, with the use of their logos indicating support for the site. I’m no lawyer, but I’m pretty sure that’s actionable as well, by corporations that have a huge vested interest in protecting their brand names. They also have legal departments filled with folks who only keep their jobs as long as there’s legal work to do…

Sean Parnell
President
Center for Competitive Politics
http://www.campaignfreedom.org