11 November, 2013

Using Trademarks to Silence Critics?

The law is a tool often fraught with controversy in its application, especially when this yields results contrary to the wishes of the public or a smaller segment of society more adversely affected. Most areas of law have examples of this, more recently some discussion has been raised about issues such as this relating to copyright. Intellectual property law does run the risk of being used selectively, either maliciously or through attacks to silence or influence others. In this writer's mind a statement made by Lord Denning in the famous case of Combe v Combe encapsulates well the idea in the use of legal protection, more specifically relating to intellectual property rights, even though the case itself pertained to promissory estoppel; "[the law] is a shield not a sword".

That is one snazzy logo
In a recent example of a potential misuse of the intellectual property rights afforded by trademark legislation is the company Canonical's attempt to influence a website operated by Micha Lee called Fix Ubuntu; a website which seeks to remedy alleged shortcomings of the operating system "Ubuntu". The name of the operating itself is a registered trademark owned by Canonical, having been filed in May 2013. Although the company's motives on the outset are purely to protect their trademark, which they are wholly entitled to do and have to do should they want to retain it, what lies underneath their initial steps can be questioned.

The use of trademarks (and other intellectual property rights) as a way to silence critics or to prevent active discussion as to the potential faults of company or a group is nothing new. The Church of Scientology has reportedly used its rights to attempt to take down websites, and Playboy has utilized its trademark rights to take down a website operated by the feminist group FORCE which parodied Playboy's website.

Canonical were not critical of what Mr. Lee had written on his website, but were mainly concerned about the use of their trademarked name and logo, as can be seen through the email sent to Mr. Lee:
"Unfortunately, in this instance we cannot give you permission to use Ubuntu trademarks on your website and in your domain name as they may lead to confusion or the misunderstanding that your website is associated with Canonical or Ubuntu. 
So, whilst we are very happy for you to write about Ubuntu, we request you to remove Ubuntu word from you domain name and Ubuntu logo from your website."
Prima facie the intentions of the company are wholly legitimate, as has been said above; however it has been pointed out that Canonical has been selective in its protection of its trademarks, leaving less critical or even promotional websites not associated with Canonical operational without hindrance. This by itself showcases a potential motive to use trademarks as a sword, not a shield.

The potential misuse of trademarks is a problem, and can be illegal if it hinders the rights of its users under freedom of speech provisions. Even though this writer does accept that companies can, and should, protect their rights, they should be more cautious in their endeavors to do so. Claims over infringement should be thought through and be legitimate; not merely an effort to stifle criticism or commentary.

Source: Ars Technica

No comments:

Post a Comment