Citizens United, fresh from its Supreme Court victory giving corporations the right to bankroll election campaigns, has sent a trademark demand letter to the Wisconsin Democracy Campaign, complaining that a Facebook page entitled “Citizens United Against Citizens United” infringes its trademark. Apparently, Citizens United is worried that members of the public might come to the page and think that the organization “Citizens United” is attacking Citizens United, the landmark Supreme Court decision that it won.
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?
Paul Alan Levy is a Public Citizen attorney. Cross-posted at Consumer Law & Policy Blog.