Digital Marketing Regulation and the Fear of Clowns Are 2010 Themes

By Dave Wieneke | in Free speech / censorship, Highlights, Public policy, Trademark law | 1 Feb 2010 | 2 Comments

Last week I asked UsefulArts.us readers what they think may online law trends for  2010.  Here’s the first of what looks like a half dozen responses to that question.

The Coulrophobia Epidemic of 2010: trademark owners’ fear of clowns may be rational.
When a competitor uses your mark and pretends to be your company, that’s infringement. But when a clown mocks you with your own mark, that’s parody. And it may well be protected speech. And in an age of Twitter and viral video, mocking can be more deleterious than infringement.

Consider this fake press conference, at which an impostor U.S. Chamber of  Commerce announced its (not real) change in policy to support combating global warming. When the real Chamber shows up, it turns into an episode of The Office, which the clowns play to the Chamber’s regret.

From the above escapade, the Chamber filed a claim of trademark infringement and used a take-down notice to force the pranksters’ ISP to discontinue a parody website that supported the hoax. Was there a “likelihood of confusion”? Absolutely. And it was also classic parody speech.

Similar trademark claims have been made against NYTimes.se, which mocked The New York Times and corporations like DeBeers. We recently noticed The South Butt, a clothing line which mocks The North Face. And, only a few days ago, environmental activist Brian DeSmet received a complaint for mocking Peabody Energy.

In a world where Ashton Kutcher is considered a brand, a fear of clowns may be a viable business survival strategy.

Regulation of digital marketing heats up. States try it too.
I suppose the fear of regulators is a variation of the fear of clowns.

In 2009, I noted with concern that the FCC began to use “public interest” language to describe its interest in regulating access to, and speech on, the internet. Our friends point out that the FCC has sometimes shown more concern for the demands of corporate lobbyists and “public decency” advocates than it has for individual civil liberties.

Consider the FCC’s efforts to protect Americans from “dirty words” in FCC v. Pacifica Foundation, or its much-criticized deregulation of the media industry, or its narrowly thwarted attempt to cripple video innovation with the Broadcast Flag.

The impulse to regulate (and tax) the Net extends to state and local levels. John Ottaviani guest-blogged on Eric Goldman’s Tech & Marketing Law Blog about Maine’s passage of a little COPPA Act banning the use of personal information about minors for marketing purposes (which the Maine Attorney General then refused to enforce) and Kentucky’s seizing of domain names. Add to these Massachusetts’ failed online privacy act and numerous states’ decisions to tax e-commerce. States, along with federal regulators, seem to be keen to mold the internet.

If there is a common theme between these issues, is that parody and regulation is that both claim to be in the public interest, and both hard to defend against. I expect to see marketers organize to participate in regulatory dialog, and I expect to see clowns rampant as ever on the web and in social media.