Trademark Bullying from a Merchant of Death

by Paul Alan Levy

Take a gander of this image: do you think, or even suspect, that Philip Morris, the maker of world-renowned Marlboro cigarettes, might approve this image, or might indeed be offering it for sale?

If so, you might well be one of the morons in a hurry that Philip Morris and Roberta Horton, a lawyer at its long-time law firm Arnold and Porter, consider to be so likely to be confused about sponsorship or affiliation that sale of this Tshirt represents trademark infringement or dilution. Or, at least, so she claimed in a cease and desist letter to SkyGraphX, the maker of the shirt.

We at Public Citizen have been tangling with Arnold & Porter about its proudest client's right to kill consumers through smoking products for as long as I can remember. We don't always agree with the point of view of people whose online free speech rights we defend, but this is a situation in which we are especially pleased to be able to defend the rights of this parodist to convey his message through a Tshirt offered for sale. In a letter today, I have explained to Ms. Horton why her client's claims lack merit

Indeed, when I tried to talk to Ms. Horton about her client's claims and why SkyGraphX was not going to truckle to her demands, she expressed impatience because, she said, she had been able to "resolve" hundreds of situations just like this one. I confess that this piqued my curiosity about how much successful bullying she and her client have been able to do. One of the natural issues that can arise in a trademark infringement action is the extent to which the trademark holder has been "policing its mark," so assuming that this case ever gets into discovery, we will look forward to finding out about past bullying of this sort. It may well that there is a pattern of oppressing free speech that may warrant injunctive or declaratory relief.