Unless you’ve been living under a rock lately, you’ve heard about the Citizens United decision by the Supreme Court, which reiterated corporate personhood in certain circumstances — specifically with regards to political campaign funding — effectively freeing up companies to spend as much money as they wanted to support (or not support) political candidates. The ruling was quite controversial, and it’s not at all surprising that a Facebook group popped up with the creative name “Citizens United Against Citizens United.” Turns out that the Citizens United organization was none too happy about the criticism. Paul Alan Levy alerts us to the news that the new bastion of “free speech” is claiming that the Facebook group violates its trademark and is demanding the destruction of all documents bearing its mark.
Although we haven’t seen this issue litigated in the context of Facebook, Citizens United’s demand flies in the face of the many decisions holding that an Internet gripe site (or fan site) may use the trademark of the subject of the discussion as its domain name. Under Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005), that’s even the rule in the Fourth Circuit, where Citizens United is located. How can they possibly hope to win a case like that?Wisconsin Democracy Campaign’s argument would seem to be even stronger, because it is using “Citizens United” in its descriptive sense, and not as a mark. It seems doubtful that Citizens United the conservative group can prevent a group of citizens who are united to support or oppose a particular proposition from referring to their effort as Citizens United For X or Citizens United Against Y. (Otherwise, many groups that would have to change their names). It is especially hard to understand how any confusion about source could be expected to result from labeling a campaign “Citizens United Against Citizens United.”
Interestingly, Citizens United asks Wisconsin Democracy Campaign to destroy all documents bearing the Citizens United trademark. If that demand were extended to the Supreme Court, could it succeed in wiping the Citizens United decision off the books?
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