No Trademark on Free Speech
Copyright protection was not designed to insulate corporations from public criticism
In 1983, the famous manufacturer of Perrier sparkling water sued a Canadian jokester who had created "Pierre Eh!" bottles that closely resembled its distinctively shaped green bottles.
The Pierre Eh! bottles were created to mock Pierre Elliott Trudeau, sold for $4 (as opposed to a real bottle of Perrier, which then cost about a dollar), and had a limited potential market. Nevertheless, Perrier sued for trademark infringement - and won. Pierre Eh! had to be abandoned.
As one commentator explained, the courts were "not amused," refusing to consider humour, parody or political criticism an excuse for trademark infringement.
Fast forward to 2009, where we now have Wal-Mart seeking an injunction on the same basis, trademark infringement, in an attempt to have a union dismantle its website, walmartworkerscanada.ca.
The order sought by Wal-Mart would require that the union not use the words "Wal-Mart" or "Wal-Mart Workers," not make fun of the Wal-Mart slogan "Save Money. Live Better," not use oval signs similar to Wal-Mart signs, etc.
If successful, the scope of this injunction order could easily have the effect of silencing Wal-Mart's opponents. In response, the union is challenging this use of trademark protection by Wal-Mart - as well it should.
In seeking an injunction, Wal-Mart is misusing intellectual property laws. Trademark and copyright protections exist to prevent commercial free-riders from exploiting the investments that businesses make in their products and marketing.
These protections are not designed to insulate corporations from public criticism. The union is obviously not trying to pass itself off as a Wal-Mart store; rather, it is criticizing Wal-Mart's employment practices.
Trademark and copyright protections should be interpreted to allow exceptions for political speech, parody and satire. Freedom of expression should permit parodies on political leaders, such as Pierre Eh!, which is indeed a legal development that has taken place in many other countries.
But trademark and copyright protections should also permit public criticism of corporate actors. Political speech is not only speech about governmental actions.
At a time when the private sector is under the microscope for having mismanaged risks in the market, citizens should be entitled to express their concerns regarding the ways in which corporate actors behave.
In a neo-liberal economy, corporations are powerful actors. Wal-Mart, for example, advertises average net sales of $100 billion per quarter - which makes it bigger than many governments.
It makes no sense that citizens would be allowed to criticize fully their municipal, provincial and national leaders, using parody and humour, but be prevented from using humour to oppose Wal-Mart's practices.
As with any powerful corporate citizen or public figure, Wal-Mart has to accept that with fame comes criticism. A responsible corporate citizen does not seek to silence its critics, but to engage in the debate.
It is time for our law to recognize and interpret trademark and copyright protection in light of the Charter guarantees of freedom of expression, and to allow exceptions for parody and political speech.
The Wal-Mart case provides an opportunity for the courts to advance the law in that direction and balance commercial protection with free expression.
Ultimately, the federal government must also review its legislation and clearly protect parody, satire and political speech. The review of the Copyright Act announced for this fall represents such an occasion, and, along with other intervenors, the Canadian Civil Liberties Association will be pushing for modifications to the Copyright Act consistent with our evolving understanding of freedom of expression.
The federal government has recently unveiled the Investigative Powers for the 21st Century bill. It is time, however, that it propose A Freedom of Expression for the 21st Century agenda, and provide protection for individuals who want to criticize not only governments, but also the corporate actors who shape their environment and society.
Nothing less is required in a country committed to free expression.
© Copyright Toronto Star 1996-2009