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Thu, 14 May 2020

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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