--- Date: Mon, 02 Jun 2003 11:16:50 -0400 From: "Paul Levy" <PLEVYat_private> To: <declanat_private> Subject: Important new trademark decision The Supreme Court today rejected an expansive construction of the Lanham Act that had been adopted by the Ninth Circuit. In Dastar Corp. v. Twentieth Century Fox Film Corp., the Court overturned a decision that had held Dastar liable for issuing a series of videotapes that were based very heavily on a TV series that had fallen into the public domain. 20th C Fox, which had succeeded to the rights to the TV series, avoided the problem that copyright law gave it no rights, sued Dastar under the Lanham Act, claiming that its failure to acknowledge that it was plagiarizing large sections of Fox's series, it was misrepresenting the origins of the creative work as its own. In a unanimous opinion by Justice Scalia, however, the Court adopted a narrow construction of the statutory term "false designation of origin", saying that the Act only protects against misrepresentation of the source of the goods, not misrepresentation of the source of the intellectual content of the goods. The ruling does not bear directly on most of the cases in which trademark law is invoked as a basis for suppressing free speech on internet gripe sites, but this is the second case in as many years in which the Court has expressed antipathy toward expansive readings of the trademark laws, while focusing on the social cost that such readings may create (last Term was the V Secret case, about the level of showing required for a dilution claim). For that reason, it is a welcome development. (there is also a passing reference to Eldred, saying that if the Ninth Circuit were correct, that "would be akin to a finding that section 43(a) created a species of perpetual patent and copyright, which Congress may not do. Cf. Eldred...." Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation/litigation.html ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. ------------------------------------------------------------------------- To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ Like Politech? Make a donation here: http://www.politechbot.com/donate/ -------------------------------------------------------------------------
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