Tell Congress: Don't Allow Big Corporations to Chill Artistic Expression

Artwork by Don Stewart who was threatened with a lawsuit by Volkswagon for trademark infringement.

No More Action Needed. Thank you for your interest, but the Senate has already voted on this amendment.

Attention consumers, artists and small business owners: your free speech is being threatened! The House Judiciary Committee is currently considering a bill, the Trademark Dilution Revision Act (H.R. 683), that makes a technical change in the Lanham Trademark Act. The change would have a chilling effect on free speech and artistic expression by making it more difficult to refer to big companies by mentioning their trademarks.

Consumers and artists are currently protected from being sued for trademark infringement by companies if the use of the trademark is for fair use, news reporting/commentary or non-commercial use. The technical change in the bill would eliminate these three important defenses against charges of trademark infringement. Simply by adding the prefix "sub" to the word "section" in prefatory language describing the coverage of the defenses, the drafters of this bill sneaked in a drastic limitation of the scope of the defenses – and without even bothering to point out the change or explain to Congress why the change was being made.

In one current case, Volkswagen has threatened to sue an Alabama artist, Donald Stewart, who drew an automobile in the shape of the classic VW "Bug" made out of insect parts. As passed by the Senate, the bill would protect Stewart against claims of trademark "dilution by blurring and dilution by tarnishment," but he would still be exposed to the devastating prospect of having to defend a trademark infringement lawsuit.

When a big company challenges a reference to its trademark, small business owners, artists, photographers or illustrators are often forced to yield to avoid costly infringement litigation. In a letter to the House Judiciary Committee, Public Citizen and other consumer, arts and public interest groups wrote, "Artists, consumers and others need to be able to refer to trademarks when they are discussing matters great and small." Tell Congress to protect free speech by changing the introductory language of the three defenses back to the way it appears in current law to avoid the potentially stifling impact on free speech.

January 16, 2019


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