The US Chamber of Commerce has sued a group of online pranksters for trademark infringement, after these Yes Men floated a fake online press release that mimics the Chamber's website.
The faux release first appeared last Monday, announcing that the Chamber had suddenly reversed its Apple-bouncing opposition to greenhouse gas legislation. The Yes Men even went so far as to host a faux press conference - which was soon raided by the (real) Chamber men:
But even after the Yes Men acknowledged the hoax, the press release remained online, and the Chamber couldn't help but toss a DMCA takedown at the pranksters' ISP. Those net watchdogs at the Electronic Frontier Foundation (EFF) cried foul over the takedown notice, arguing that parody is protected under copyright law and the US Constitution's First Amendment.
But we would argue the faux release sits somewhere in a gray area between parody and stark imitation.
"It’s tough when you start to do street theatre on a computer," Jonathan Handel, an IP lawyer with the California firm Troy & Gould, tells The Reg. "There’s no way of signaling that it’s a parody."
In hindsight, the release went a bit over-the-top. "We at the Chamber have tried to keep climate science from interfering with business. But without a stable climate, there will be no business. We need business more than we need relentlessly higher returns," reads the faux prepared statement from Chamber CEO Thomas J. Donohue. But many were duped by the release, including a Reuters reporter. A story based on the faux release soon appeared in The New York Times and The Washington Post.
From a convincing url - www.chamber-of-commerce.us - the release faithfully duplicates the look of the Chamber website, using the Chamber's logo and others images from the site. And now the Chamber has filed a suit alleging infringement of trademarks and other intellectual property.
"Defendants had a common plan to engage in acts that violated multiple laws," the complaint (PDF) reads. "These acts deceived the press and public, and caused injury to the Chamber, while promoting the commercial ventures of certain Defendants who trade under the name 'The Yes Men.' The acts are nothing less than commercial theft masquerading as social activism."
Such a trademark suit, Jonathan Handel argues, carries a bit more weight. "There are doctrines such as fair use and parody in trademark law as there are in copyright, but they're somewhat narrower and less developed, so the Yes Men seem to me to be on pretty thin ice," he tells The Reg.
The law protects "transformative" uses of intellectual property - a parody is one example - and with a trademark, transformation is much easier to pinpoint. "The Yes Men could have made their point by using a mock logo inspired by the Chamber's and poking fun at the Chamber and its logo. That could still have been effective. Instead, they used an exact copy of the Chamber's logo. Fair use favors transformative uses, but here there was no transformation."
The Yes Men declined to discuss the suit, but they provided the following statement: "It's very disappointing, even to us, that the Chamber would take an approach like this to what is very obviously political criticism." And they pointed to the EFF, who has yet to respond to our request for comment.
We have also contacted the Chamber of Commerce to verify that the press release announcing the lawsuit is indeed a press release announcing the lawsuit. But they too have yet to respond to a request for comment.
The Chamber may or may not have a case. But you'd have to say they're hurting themselves as much as the swashbuckling Yes Men. The Streisand Effect is, well, in effect. The Yes Men aimed to expose the Chamber's blinkered attitudes on climate change. And their prank grows more successful by the day. ®