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May 2020
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National Geographic Defeats Trademark Suit Over 'Wild America' and 'Untamed Americas' Claim

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There is always tension between the First Amendment and trademark law, but it's a tension that is usually dissolved by trademark's primary aims to keep the public well informed as to the source and affiliations of goods and services. Still, it shouldn't be lost on anyone that the law at its heart is chiefly about what a business or commercial interest can name/say about itself. And, while the law carves out space in speech for identifying branding and language, the First Amendment doesn't entirely disappear in such commercial squabbles just because someone shouts trademark at it.A recent example of this would be a trademark suit brought by Marty Stouffer a couple of years ago. Stouffer is a notable documentarian who heavily influenced the nature documentary landscape, typically on PBS. One of his series was entitled "Wild America", a PBS staple beginning in the 80s. National Geographic, on the other hand, produced a series of nature documentaries under the title "Untamed Americas" beginning in 2012. Stouffer claimed the title of the series was infringing upon his trademark in 2018. Well, the court has since ruled in favor of National Geographic, applying the Rogers test, which looks at whether there are First Amendment rights gained by a title that has artistic merit concerning the work itself.

The fact that National Geographic is using its titles to describe the content of the accused series weighs heavily in National Geographic’s favor. Each of the accused series substantially focuses on America’s wildlands. While the English language is notably quite expansive, the range of words to describe such programming is limited. Yet Stouffer would not allow even a synonym for ‘wild’ (i.e., ‘Untamed Americas’).Judge Martinez initially applied the Second Circuit’s “Rogers test,” which asks whether the title has artistic relevance to the underlying work and whether it explicitly misleads the consumer. Seeing that the test disproportionately favored junior rights holders like National Geographic, Martinez asked six additional questions and allowed Stouffer to submit an amended complaint last year. Ultimately, Martinez reached the same conclusion, although he cautioned that doesn’t make the phrase “Wild America” a free for all, if there was “evidence of a non-artistic intent with respect to the use of the trademark.”
If this were instead called the Geigner test, it would go something like this: Hey, What is Untamed America about, oh it's about Americas that are untamed, well then it's allowed. The general idea is that whatever trademark law can do to curtail the rights of speech under the First Amendment, it most certainly cannot prevent a person from titling their creative work with a description of that creative work. And that appears to be precisely what Stouffer was claiming.Now, I have no idea what sort of financial shape Stouffer was in, but the fact that he attempted a Kickstarter project to remaster his Wild America series in 4k, but only raising roughly $3,000 of the $1.25 million goal, does at least make one wonder if this lawsuit wasn't purely a money grab in the hopes of a settlement.If it was, it most certainly has failed. Wildly.

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posted at: 12:00am on 14-May-2020
path: /Policy | permalink | edit (requires password)

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North Carolina Supreme Court Overturns Awful Decision By Appeals Court, Says Giving The Finger To Cops Isn't A Crime

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Last August, the North Carolina Court of Appeals decided it was OK for police officers to use protected speech as the basis for retaliatory stops. The stop -- and the criminal charges that followed -- originated from this interaction:

While assisting the stranded motorist, Trooper Stevens turned his attention to another car traveling on the roadway. Defendant, a passenger in a small white SUV, had his arm outside of the window and was making a back-and-forth waving motion with his hand. As Trooper Stevens turned to look towards the car, defendant’s gesture changed from a waving motion to a pumping up-and-down motion with his middle finger. Believing that defendant was committing the crime of disorderly conduct, Trooper Stevens got into his patrol car to pursue and stop the SUV.
The ensuing stop resulted in the defendant being charged with obstruction -- not because of his middle finger waving, but because he, at first, refused to present his ID to the trooper. He was never charged with the disorderly conduct the trooper felt was criminal enough to justify a stop.Despite several other courts reaching the opposite conclusion -- that flipping the bird cannot form the basis for a lawful stop -- the NC Court of Appeals went in a different direction.
Here, without having to determine whether Defendant’s conduct of extending his middle finger, in itself, constituted a crime, we conclude that the trooper had reasonable suspicion to initiate the stop of Defendant. The trooper saw Defendant make rude, distracting gestures while traveling on a highway in a moving vehicle in the vicinity of other moving vehicles. A reasonable, objective officer having viewed Defendant’s behavior could believe that a crime had been or was in the process of being committed. For instance, the crime of disorderly conduct in North Carolina is committed where a person “makes or uses any . . . gesture . . . intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.” N.C. Gen. Stat. § 14-288.4(a)(2) (2017). Defendant’s actions, both his waving and middle finger taken together, aimed at an unknown target could alert an objective officer to an impending breach of the peace.
And just like that, North Carolina law enforcement officers had permission to engage in retaliatory stops. This ruling was greeted with near-unanimous derision, given its hot take on the statute Trooper Stevens pulled out of his ass to justify his actions. At least one law prof speculated social media outrage had something to do with the court's decision to withdraw its opinion roughly two weeks after it had delivered it.Whatever second thoughts the majority might have had about their conclusion, they weren't enough to overcome their first thoughts. A couple of days later, the court released an amended opinion that changed nothing but how loudly the table was being pounded. It doubled down on its bad legal rationale, claiming that the fact that the rude hand gesture continued after the car had passed the state trooper as the vehicle continued down the road changed it from protected speech (a middle finger extended to law enforcement) to a crime (a middle finger extended to no one in particular).
Unlike the circumstances in those other cases, where all that was involved was an individual expressing contempt to a law enforcement officer, here, it was not clear to the trooper to whom Defendant was continuously gesturing. Indeed, Defendant was well past the trooper when he changed his gesture to a pumping motion with his middle finger extended. While it may be reasonable for the trooper to suspect that the gesturing was, in fact, meant for him, and therefore may be constitutionally protected speech, it was also objectively reasonable for the trooper to suspect that the gesturing was directed toward someone in another vehicle and that the situation was escalating. Such continuous and escalating gesturing directed at a driver in another vehicle, if unchecked, could constitute the crime of “disorderly conduct.”
The stupidity is finally over. The state's Supreme Court has reversed [PDF] the Appeals Court ruling, determining that an objectionable hand gesture alone cannot provide the basis for a traffic stop. (h/t Volokh Conspiracy)
We conclude that these facts alone are insufficient to provide reasonable suspicion that defendant was engaged in disorderly conduct. The fact that Trooper Stevens was unsure of whether defendant’s gesture may have been directed at another vehicle does not, on its own, provide reasonable suspicion that defendant intended to or was plainly likely to provoke violent retaliation from another driver. Likewise, the mere fact that defendant’s gesture changed from waving to “flipping the bird” is insufficient to conclude defendant’s conduct was likely to cause a breach of the peace. Based on the facts in the record, we are unable to infer that, by gesturing with his middle finger, defendant was intending to or was likely to provoke a violent reaction from another driver that would cause a breach of the peace.Thus, we conclude that it was error for the trial court to find that there was reasonable suspicion of disorderly conduct to justify the stop.
It also appears the government lost interest in defending the actions of Trooper Stevens. Its only argument was that the stop was justified under the community caretaking function, which the Appeals Court rejected in favor of the trooper's disorderly conduct theory. The Supreme Court notes it presented no arguments here at all, making it that much easier for it to overturn the lower court's decision.
In its brief here, the State acknowledges that its sole argument in the Court of Appeals involved the community caretaking exception, and that the court unanimously rejected that argument. In fact, the State agrees that the specific, articulable facts in the record do not establish reasonable suspicion of the crime of disorderly conduct.
That sends the decision back to the Appeals Court, which will have to send it back to the trial court to finally grant the suppression motion that triggered this unfortunate succession of bad decisions by North Carolina courts. Unfortunately, the Supreme Court doesn't go so far as to say giving cops the finger is always protected speech, but it does make it clear it's not a criminal act and, alone, cannot justify a stop.

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posted at: 12:00am on 14-May-2020
path: /Policy | permalink | edit (requires password)

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