Another day, another stupid trademark threat. The target this time? The Sunlight Foundation, a nonprofit dedicated to promoting government transparency. As part of its work, it posts detailed information about corporate campaign contributions, information that often includes logos associated with those corporations. One of those corporations, Deloitte Touche Tohmatsu, objected, and asked that Sunlight remove its logos. The note was quite polite for a takedown, stressing that Deloitte had no objection to the other content on the site (gee, thanks guys!). But polite or not, it's a note that would be pretty intimidating for most individuals, nonprofits, and small businesses who don't have easy access to a lawyer.
Fortunately, Sunlight was not intimidated. They reached out to EFF, and today we responded on their behalf. As we explained, no person could possibly be confused as to whether Deloitte endorses the Sunlight Foundation or its activities. Moreover, it is well-settled that the First Amendment fully protects the use of trademarked terms and logos in non-commercial websites that comment upon corporations and products. Sunlight's site is a clear example such protected expression. These are all points that Deloitte could have figured out for itself, if it had bothered to give the matter a moment's thought.
That is what is particularly chilling about this takedown. Too often, we see this kind of casual censorship, where owners, (or their agents) shoot off complaints against any use of their marks, without regard for the consequences. Mindless over-enforcement is unnecessary, burdensome, and feeds a censorship culture. It has to stop.
A first step is for Deloitte, and other trademark owners, to adopt enforcement policies that explicitly recognize that their trademark rights do not and cannot trump the First Amendment. Imagine the impact on free speech if you needed a “grant of permission” from BP, Coca-Cola, or EFF before using one of their trademarks as part of speech commenting on their conduct. Fortunately, we don’t live in such a world; no one needs to seek permission for every use of a name or logo.
The second step is for mark owners to finally reject the notion that a mark-holder must enforce its mark in every instance or risk losing it. Quite simply, the view that a trademark holder must trawl the internet and respond to every unauthorized use (or even every infringing use) is a myth. The circumstances under which a company could actually lose a trademark—such as abandonment and genericide—are quite limited. Pretending otherwise is great for some trademark lawyers' bottom lines, but it's irritating and expensive for everyone else. And when done clumsily or maliciously, it chills free expression. Rejecting the myth would not only help the public, it should reduce also mark-holders' legal bills. Win-win, right? Right.
