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Testing Trademark Law: U.S. Chamber of Commerce v. The Yes Men

Posted in Counterfeits, Dilution, Domain Names, Famous Marks, First Amendment, Infringement, Law Suits, Trademarks

–Dan Kelly, Attorney

Last week, a group calling themselves The Yes Men apparently perpetrated an elaborate hoax to usurp the corporate persona of the United States Chamber of Commerce, to the point of publishing a fake website and holding a press conference at the National Press Club, posing as the Chamber itself.   (Image of genuine website here.)

As reported at Betanews (and elsewhere), representatives of the real U.S. Chamber of Commerce became aware of the hoax in time to actually interrupt the faux press conference, under the auspicies of which the pranksters were announcing an about-face in the Chamber’s previously-stated positions on climate policy.  As of this writing, the Betanews article has a six minute video of the press conference as it is interrupted by a genuine representative of the Chamber.  It is interesting to see how close the hoax came to actually duping real members of the press.  (Of those in attendance, apparently four actual reporters were naive to the hoax, and they reported for the Washington Post, Reuters, and Greenwire.  Some of those attending were allegedly plants.)

On Monday, the U.S. Chamber of Commerce sued The Yes Men for a host of trademark-related torts, including trademark infringement, unfair competition, trademark dilution, false advertising, and cyberpiracy.  (PDF of complaint here.)  They even worked in an allegation of counterfeiting.  (Had I drafted the complaint, I would have used the word “counterfeit” as often as possible.)  While I reserve judgment as facts develop, the information publicly available now suggests that the Chamber has a strong case.  The Yes Men seem to be leaning towards some sort of a free speech defense.  The complaint suggests that The Yes Men perpetrated the hoax in an effort to publicize their new movie.  Whether this is the case, or whether this was an actual effort to deceive people, I don’t see much traction for a free speech defense, which requires at a minimum that the speech in question not be misleading.  This should be a fun case to watch!