US Chamber: Fake site by Yes Men not a parody but a fraud

In a lawsuit filed yesterday in US District Court for DC, the US Chamber of Commerce charged the company that manages the team of self-styled comedians and social activists known as the Yes Men with criminal fraud, including the creation of a fake Web site designed to resemble the real Chamber site, specifically to promote sales of their new film and paraphernalia surrounding that film. Along the way, the Chamber bypassed any allegation that might lead directly to the "parody defense" -- that appropriating the appearance of the target of parody is necessary in order to "bring to mind" the subject of that parody, as the law puts it.

Instead, the Chamber went straight for the heart, alleging that the creation of a Web site at was done to dilute the value of the real Chamber trademark. "Defendants' use of Plaintiff's marks without the authorization or consent of the Chamber causes tarnishment by associating those marks with Defendants, whose positions and tactics are inconsistent with positions and conduct of the Chamber, its members, and prospective members."

Last week, the fake Chamber Web site issued what appeared to be the transcript of a speech purportedly by Chamber president Thomas J. Donohue, delivered that week at the National Press Club in Washington. In actuality, meanwhile, a real person was indeed delivering a speech there. However, it was another Yes Men member pretending to be a representative of Donohue, who brought fake reporters with him to ask fake questions, and whose antics attracted a few real reporters' attention.

The fake conference was interrupted by a real Chamber member, whose credentials were immediately called into question by the fake reporters -- all of whom were being taped in conjunction with a promotion for the movie, The Yes Men Fix the World. The confrontation stopped short of violence; and in the end, a person proclaiming to be a real reporter provoked the speaker to finally state he was representing the position that the Chamber should ultimately take: specifically, that "clean coal...doesn't exist."

In the meantime, the Yes Men's antics may have ended up taking the spotlight away from the climate change and "clean coal" issues, and dragging it into the realm of domain names as trademarks. Currently, the law does not grant a trademark holder the rights to the counterpart of that trademark in the realm of domain names, although it does give a trademark holder redress should someone use a domain name that borrows a trademark in a fraudulent action against the trademark holder.

Should the Chamber prevail in this suit, it could set legal precedent with regard to anyone who registers a domain name similar to a trademark, and then uses the likeness or the graphics from the trademark holder, in the course of a criminal act. The Chamber is not accusing Yes Men of "criminal parody," but rather of misappropriating registered marks in the pursuit of financial gains -- in this case, promoting a movie.

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