With recent headlines being made with comments made by Hank Williams Jr. and an advertisement published by Ford, Americans should be reminded of what our right to "free speech" covers. Our right to speak our minds, within certain prescribed limitations, has been subtly curtailed by either direct or indirect influence by our government. With political propaganda moving forward at full-steam with elections right around the corner, it seems that some officials would thwart a fundamental basis of our country in order to maintain a favorable foothold among public opinion. Before we get ahead of ourselves though, what does the First Amendment really do for us?
The First Amendment of the United States Constitution protects our rights to freedom of expression and freedom of religion. However, this protection relates to interference from the government, and not restriction or censorship by private individuals or entities. Further, by way of the Fourteenth Amendment, this protection extends not only to interference by the federal government but by that of state governments, as well. Of course, this doesn't give us carte blanche to say anything....there are limits.
Through our history, the United States Supreme Court has interpreted our First Amendment, doing what it can to clarify the boundaries of its protection. With that, the Court has delineated various exceptions to our right to freedom of speech, a form of expression, exceptions that in fact provide for government interference of one our most precious tools.
One differentiation made by the Court is whether or not the regulation is for a specific content or is "content-neutral." With regulations against specific content, the government must provide a substantial justification for the regulation or employ a "narrowly tailored" and "least restrictive" restriction that "serves a compelling state interest." An example of a compelling interest is ensuring that "criminals do not profit from their crimes." In contrast, an interest that is not compelling is "equalizing the relative ability of individuals and groups to influence the outcome of elections."
On the other hand, regulations deemed "content-neutral" are subject to a less stringent test. With "intermediate scrutiny," the regulation must further an important government interest by means that are substantially related to that interest. In determining whether a particular regulation passes muster, the regulation must be reasonable in time, place and manner, as well as provide for "adequate alternative channels of communication."
Because the Court's decisions appear to highlight distinctions without a difference, the protection provided for by the First Amendment has been in somewhat of a flux since its inclusion in our Bill of Rights. Even so, the right to freedom of speech is fundamental to our persistence as citizens and our evolution as a country. With that in mind, the Court has refused any protection to certain categories of speech including obscenity, fighting words, defamation, child pornography, perjury, blackmail, incitement to imminent lawless action, true threats and solicitations to commit crimes.
So why has the face of Monday Night Football changed?
Hank Williams Jr.'s "are you ready for some football?!" will be sorely missed. Watching the pregame for the Chicago Bears vs. Detroit Lions, the first Monday night for the Lions in ten years, many may have felt a little underwhelmed in anticipation for kickoff. Though Williams' absence was obvious, the "why" is lost on many of us. What we do know is that Williams, in an interview with "Fox and Friends", expressed obvious frustration to a recent golf game where John Boehner, a Republican, and Barack Obama, a Democrat, partnered together in the round. Asked why Williams though it "one of the biggest political mistakes ever," he replied that it would be like "Hitler playing golf with Netanyahu." Further, he went on to say that Obama was the "enemy."
Hank Williams Jr. Interview on Fox and Friends
Understandably, reference to Adolf Hitler, an individual responsible for the deaths of millions of people, brings an immediate response of distaste and anger. However, the headlines that read "Williams compares Obama to Hitler" appear somewhat off-base. In listening to the interview, Williams seems to suggest that the two partnering together in a golf match is as contradictory or ineffective in resolving any underlying issues as a partnership between Hitler and Netanyahu. Certainly, a meeting of the minds between the later pair would be fruitless, to say the least. However, it is a far stretch to say that Williams was implying that Obama is "like Hitler."
Granted, Mr. Williams could have tempered his thoughts and feelings much more, maybe even using a very different comparison of "opposites." However, his meaning has been lost when the entire context of the interview is disregarded. Near the end of the interview, he mentions multiple times that our nation is polarized, referring to a lack of compromise among our political parties, and society as a whole. Undoubtedly, this polarization makes it extremely difficult, if not futile, to come to any resolution on the issues that truly matter to our country. That much is clear to most, if not all, of us.
Now, because ESPN is a private entity, they are not bound by the protections imposed by the First Amendment. Many commentators have suggested that ESPN's actions are contrary to Williams' right to free speech, but that protection does not extend to those actions. Mistakenly, many of us have made the argument, a mistake stemming from a misunderstanding of our rights. It is up to us to reinforce our understanding of all the rights and privileges afforded to the citizens of our country, and going forward, a more concerted effort must be made to educate one another. So, regardless of what any of us feel about Mr. Williams' comments, ESPN is free to do as they wish, within their contractual obligations, in dealing with what they deem inappropriate.
Built Ford Tough!
Ford Bailout Commercial
Now, the "questions" the government has posed to Ford concerning whether or not the ad was "publicly denigrating," while not technically a regulation in and of itself, are influential. So much so, Ford pulled the add despite vowing they were not pressured into doing so. As with any commercial speech, one criteria in securing protection under the First Amendment is that the speech not be false or misleading. Ford, without question, did not accept any federal financial assistance in order to keep its doors open and manufacture automobiles. So why all the hooplah?
Apparently, officials in the White House do not like being reminded of facts. From a listener's perspective, Chris McDaniel exudes a respectable love for Ford, hard-work and America...and our innate ability to get a job done with our own hands, despite the circumstances. Certainly, that is something the United States was built on? Right?
So, respecting Ford's averment that the pulling of the ad was not a result of government pressure(because that would likely violate the First Amendment), then we must assume that the only other excuse for the ad being taken off the air is valid. Since the absence of the Ford ad is simply a consequence of the ad period running it's course, the next question we all have then, is when will all the misleading political campaign ads run their course??
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Tuesday, October 11, 2011
Wednesday, September 7, 2011
Toucan or not Toucan....that is the question!
As with any trademark infringement case, the basic question that must be answered is whether the allegedly infringing mark is so confusingly similar to an existing mark that it creates a likelihood of confusion, mistake and/or deception with the consuming public. There are several factors that are considered in making this determination such as:
Now, most of us who have eaten Kellogg's Fruit Loops cereal...or still eat those colorful, sugar-coated rings, are familiar with Toucan Sam. The other mark, though, may not be readily known by many of you, but it is associated with the Maya Archaeology Initiative(MAI). According to its website, MAI's purpose is to "provide educational opportunities and training in Mayan history and culture for Guatemalan young people," "encourage conservation of the Peten rainforest’s animals, plants, and natural resources," "support research in new areas of Maya archaeology," "protect cultural and historical resources," and "help communities better their standards of living." And, by the way, the toucan is native to many countries in Central and South America, including Guatemala.
So, are these marks confusingly similar? Granted, both marks depict a toucan, but the analysis doesn't stop there. Considering the marks represented by each of these marks, Toucan Sam is limited to Fruit Loops. In contrast, the MAI toucan with Mayan archaeological remains incorporated is associated with an educational effort by individuals concerned with Guatemalan history and preservation. As to the strength of the Toucan Sam mark, there's no question that it easily associated with Kellogg's Fruit Loops.
Because each of these marks deals with vastly different markets, one being a specific product and the other more of an educational service unrelated to cereal, Kellogg's will be hard-pressed to find actual evidence of consumer confusion. Understand, the evidence, if available, would have to show that consumers, when they see the MAI image, mistakenly believe it to be associated with Kellogg's and/or Fruit Loops. What was your first impression after seeing the MAI image?
As to the intent of MAI in adopting the mark, certainly it was not to compete or cause confusion with Kellogg. On the contrary, MAI undoubtedly chose their image because Guatemala is a natural habitat for the toucan and is where the Mayan archaelogical remains are located. It is difficult to see some ulterior motive for making this choice....but I could be wrong...
As mentioned earlier, these two marks represent quite different products and services. As a result, ascertaining the level of care a consumer would exercise when evaluating these products/services is rather moot. In fact, it is not likely that consumers are visiting the MAI site looking for breakfast. Further, MAI has not disclosed any plan to expand into the cereal market....but that could be just a major ploy to take Kellogg's consumers right from under their nose!
Of course, you all are free to make your own judgment. What do you think? Toucan or not Toucan?
- Similarity in the overall impression created by the two marks
- Similarities of the goods and services involved
- Strength of the plaintiff's mark;
- Any evidence of actual confusion by consumers;
- Intent of the defendant in adopting its mark;
- Physical proximity of the goods in the retail marketplace;
- Degree of care likely to be exercised by the consumer; and
- Likelihood of expansion of the product lines.
Now, most of us who have eaten Kellogg's Fruit Loops cereal...or still eat those colorful, sugar-coated rings, are familiar with Toucan Sam. The other mark, though, may not be readily known by many of you, but it is associated with the Maya Archaeology Initiative(MAI). According to its website, MAI's purpose is to "provide educational opportunities and training in Mayan history and culture for Guatemalan young people," "encourage conservation of the Peten rainforest’s animals, plants, and natural resources," "support research in new areas of Maya archaeology," "protect cultural and historical resources," and "help communities better their standards of living." And, by the way, the toucan is native to many countries in Central and South America, including Guatemala.
So, are these marks confusingly similar? Granted, both marks depict a toucan, but the analysis doesn't stop there. Considering the marks represented by each of these marks, Toucan Sam is limited to Fruit Loops. In contrast, the MAI toucan with Mayan archaeological remains incorporated is associated with an educational effort by individuals concerned with Guatemalan history and preservation. As to the strength of the Toucan Sam mark, there's no question that it easily associated with Kellogg's Fruit Loops.
Because each of these marks deals with vastly different markets, one being a specific product and the other more of an educational service unrelated to cereal, Kellogg's will be hard-pressed to find actual evidence of consumer confusion. Understand, the evidence, if available, would have to show that consumers, when they see the MAI image, mistakenly believe it to be associated with Kellogg's and/or Fruit Loops. What was your first impression after seeing the MAI image?
As to the intent of MAI in adopting the mark, certainly it was not to compete or cause confusion with Kellogg. On the contrary, MAI undoubtedly chose their image because Guatemala is a natural habitat for the toucan and is where the Mayan archaelogical remains are located. It is difficult to see some ulterior motive for making this choice....but I could be wrong...
As mentioned earlier, these two marks represent quite different products and services. As a result, ascertaining the level of care a consumer would exercise when evaluating these products/services is rather moot. In fact, it is not likely that consumers are visiting the MAI site looking for breakfast. Further, MAI has not disclosed any plan to expand into the cereal market....but that could be just a major ploy to take Kellogg's consumers right from under their nose!
Of course, you all are free to make your own judgment. What do you think? Toucan or not Toucan?
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