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Chamber Vs. Yes Men: Frivolous Lawsuit, Or IP Theft?

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Chamber of Commerce President and CEO Tom Donohue and the Yes Men

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By suing the Yes Men over a prank, the Chamber of Commerce certainly isn't doing anything to change its reputation as a greedy and humorless bunch of suits that puts corporations ahead of the little guy. But could the joke be on the Yes Men by the time this is over?

A quick recap: Last week, the Yes Men, a group of political pranksters working with the activist group Avaaz, set up a mock website that looked like the Chamber's, and held a mock press conference where they announced that the Chamber was shifting its opposition to serious efforts to address global warming. The stunt fooled Reuters and other outlets, who reported the position change, before issuing corrections. In response, the Chamber first tried to have the mock site taken down, then sued the Yes Men for trademark infringement, charging that the prank was "nothing less than commercial identity theft masquerading as social activism."

There's something about the powerful Chamber -- which will meet with President Obama tomorrow, and enjoys the backing of hundreds of thousand of American businesses -- filing legal proceedings against a scrappy group of pranksters that calls to mind a man using a sledgehammer to remove a speck of dust from his eye.

"We've finally made it," Andy Bichlbaum, one of the Yes Men, said in a statement posted on the group's website this afternoon. "We're officially part of the the Extreme Left-Wing Agenda." He added: "It's shameful that the Chamber has decided to lash out at a public interest group like ours for trying to push back and call attention to the Chamber's outrageous positions."

And some critics have charged that this is exactly the kind of frivolous lawsuit that the Chamber has decried in other contexts.

But that doesn't mean the Yes Men are in the clear. At its heart, the Chamber's lawsuit charges "misappropriation of our valuable intellectual property" -- primarily referring to the creation of the fake website -- and argues that this was done for a commercial purpose: to promote the new Yes Men movie, The Yes Men Fix The World. The complaint notes that the Yes Men used the publicity from the stunt to do TV interviews at which they told viewers to see their film.

And one trademark infringement expert we spoke to said they may have a decent case. "This is not a frivolous lawsuit at all," Richard Arrett, a veteran intellectual property lawyer told TPMmuckraker. "If I was the defendant, I'd be worried."

Arrett said that the defense that the site was a parody might not fly, because, unlike true parody, its purpose, at least for a time, was to deceive people into actually thinking that it was associated with the Chamber -- and it succeeded in fooling the press. Nor would "fair use" be likely to hold much water, said Arrett, because the hoax wasn't an example of "scholarly criticism" or any of the other related areas for which the fair use defense was created.

Indeed, said Arrett, the use of the Chamber's seal could even be seen as potentially criminal trademark counterfeiting.

But Corynne McSherry, a lawyer with the Electronic Freedom Foundation, a nonprofit digital rights group that's defending the Yes Men, called this "a pretty straightforward case," that concerns "the use of trademark claims to shut down political speech."

"There's a long tradition in our case law of not allowing trademark claims to silence political criticism," McSherry told TPMmuckraker. "And it's hard to come up with more obvious political criticism than this one."

McSherry pointed out that the prank had succeeded in what she said was its prime goal -- provoking a vibrant public debate about the Chamber's political positions. "This is why we protect free speech," she said.

Despite the Yes Men's history of similar pranks against corporations, it has never before gone to court as a result, the group told Mother Jones.

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8 comments

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October 28, 2009 5:55 PM   

I'd hate to be the Yes Men right now. The stunt struck me at the time as identity theft. If they had noticeably changed the logo, labeled their materials as spoof, just done something to make it clear they weren't really the USCC, they'd be protected as parody.

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October 28, 2009 6:54 PM   

The EFF is a tough nut in these kinds of cases, so the Chamber has a real fight on their hands. I think it'll be very interesting to hear the cross-examination of the Chamber on their global warming position.

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October 28, 2009 7:47 PM   

Your description of the claims in this case, as I understand them, are inaccurate. "Fair use" of the website means very different things in the trademark versus the copyright context. Scholarly criticism, comment, etc, are some uses that are fair in the copyright context, but the trademark defense is far narrower.

The damages in this case are zero (unless copyright's statutory damages apply, in which case they have a problem). The First Amendment overtones are strong, as the gag doesn't work UNLESS confusion is dissipated. You don't lose your First Amendment protection because you sell speech for a profit.

And as to the EFF--they are generally (though not always) a disaster for the defendant in IP cases. If I were the Yes Men--that alone would worry me.

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October 28, 2009 8:38 PM   

No case, it is protected speech. As for comedians making money off parody...

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AJM

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October 28, 2009 8:39 PM   

Since when is 'scholarly criticism' privileged above
'political criticism'?

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October 28, 2009 8:55 PM   

So how do we know that this lawsuit is from the REAL chamber of commerce, and not some bunch of pranksters?

Because this lawsuit sure seems like a boneheaded stunt.

Next press conference, demand proof!

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October 29, 2009 2:29 AM   

So the Chamber, on one hand, sues the Yes Men for claiming to represent them and a position they didn't actually hold. And yet the same Chamber routinely spends millions to hire "astroturf" companies like Bonnor and Associates which then creates bogus "grassroots" groups claiming to support the Chamber's positions.

And the moral difference between these two?

Neither should we forget that the Yes Men exist as a satirical political action group while the Chamber claims to represent the interests of their members, yet does so in part by using their fiscal powers to create false public opinion and hide their actions behind "concerned citizen action groups" which don't actually exist and are created with the goal of winning the right to maintain or gain legal approval for actions which often are detrimental to the bulk of Americans.....

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October 29, 2009 7:59 AM   

This would be a damages free case. What “real” harm has the Chamber of Horrors err Commerce, actually suffered. Plus there a cross claim for trespass when it sent it’s goon to the Press Conference. It looked like there might be a battery by the COC guy. If I were the "Yes" guys, I'd make a proffer of judgment of $1000 immediately after filing an answer. Then, depending upon the forum's rules regarding proffer of judgment, the Chamber might go to verdict, but if it got less than the $1,000 from a jury [which seems likely in D.C.] it would [again depending upon the forum's rules for proffer of judgment] have to pay the Yes guys legal expenses since the Chamber would have wasted everyone's time and money proceeding to judgment and not obtaining more than what was offered in settlement.

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