Up Your Trademark
U.S.Court of Appeals Upholds Right to Criticize Nissan Motor
In a decision issued today in Nissan Motor Co. v. Nissan Computer Co., the U.S. Court of Appeals for the Ninth Circuit upheld the rights of members of the public to criticize corporations without being deemed to have engaged in "commercial speech" that can be enjoined under the trademark laws.
The case involved Uzi Nissan, a North Carolinian who runs a computer business using his surname. He was sued by the giant automaker for trademark infringement and dilution because he operated a Web site with the domain name nissan.com; he also used his Web site to criticize the auto giant for picking on him.
The trial court issued a series of rulings holding that Nissan was guilty of both dilution and, to a limited extent, infringement, and consequently issued on order forbidding Nissan from using his Web site to criticize Nissan Motor in any way, even by linking to disparaging Web sites. The trial judge reasoned that such criticism became "commercial speech" and hence could be limited consistent with the First Amendment because it had the potential for injuring Nissan Motor's business.
In a unanimous opinion written by U.S. Circuit Judge Pamela Rymer, the court of appeals flatly rejected this reasoning and overturned the injunction. Judge Rymer explained that the injunction was an improper content-based restriction that is barred by the First Amendment. She also held that the defining hallmark of commercial speech is that the speech "does no more than propose a commercial transaction," and the potential for adverse impact on Nissan Motor's commercial activities does not similarly make speech commercial.
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