Trademarks and a Bid to Censor the President

Indeed, according to an October 22 Teen Vogue article written by Emily Bloch, a member of the SPJ chapter, which applied for the trademark,

"Trump’s hefty use of the term — and the way it’s caught on among his followers — threatens the livelihood of healthy discourse within a democracy. According to a study by the Knight Foundation and Gallup, American trust in the media is at an all-time low, and 40% of Republicans say accurate news stories that cast a politician or political group in a negative light should '"always" be considered fake news.' So we’ve applied to trademark it."

You have read that correctly: to increase discourse within a democracy and boost American trust in the media, Bloch and her fellow journalists believe it prudent to remove the right to engage in certain discourse within said democracy.

However, first, Bloch wants her readers to understand just how important her job really is.

Brilliantly illuminating her own moral vanity and without even a scintilla of embarrassment, Bloch asserts, “We’re [journalists] the watchdogs of society who work hard to present the public with facts for often little recognition, praise, and pay.”

That’s right, Bloch, quite selflessly, is all that’s keeping this great republic from reverting back to the jungle. It’s time to pay attention.

Bloch acknowledges in her piece that she is skeptical of the likelihood of success of the USPTO actually granting their trademark (and thus barring offenders from using the term in the future) but nevertheless, her organization’s objective is to send trademark cease and desist letters to “frequent abusers of the term [Fake News],” the first and primary recipient, of course, being Donald J. Trump. Bloch asserts that she is “personally looking forward to sending letters and tweets his way anytime he violates our pending trademark.”

There are multiple layers of silliness to be cut through here but none more offensive than the irony of this frivolous attention-grab. Despite her remarkable and transparent display of bias and vendetta, it is still beyond Bloch’s intellectual reach to understand why Americans do not trust her and the mainstream media to be impartial arbiters of the news.

Her inability to peer through her own densely woven cloak of moral superiority would make her a rather tragic, albeit sympathetic figure, but for the fact that her unearned arrogance is so repulsive.

Now, as a purely legal matter, the notion of enforcing their ‘trademark rights’ against President Trump is entirely nonsensical. One, because SPJ does not have a trademark and two, because even if they did have a trademark, President Trump is not infringing its rights.

Remember, a trademark is a source identifier — when a consumer sees a name/logo on a good sold in commerce, the consumer understands who the manufacturer of that good is. Depending on how favorable the consumer’s opinion of the manufacturer, he will be more or less likely to purchase the product as a function of the trademark.

Trademark infringement occurs when an individual uses a sufficiently similar trademark in conjunction with a sufficiently similar set of goods to an already existing trademark, resulting in consumer confusion as to the originator of the goods.

Presently, the trademark application filed by Michael Koretzky, a member of SPJ, is for the term “Fake News” and in conjunction with the goods ‘pens.’ In order for President Trump to infringe on SPJ’s trademark rights, SPJ would both need to have obtained trademark rights to the term Fake News vis-à-vis pens and President Trump would then need to have sold pens under the name Fake News. None of these events have to date come to pass.

Naturally, these fundamental constraints of trademark law are not lost on Bloch and her associates and they too understand that they do not have a real legal argument. Instead, Bloch notes that the cease and desist letters, which let us not forget she “personally looks forward to sending,” are purely satirical and are not meant to compel any sort of response. According to Bloch, “So yes, this is satire. It’s a joke. But it’s a joke with a point, and as any student of public discourse will tell you, a joke sometimes hits harder than the truth.”

But what precisely is the point?

Ultimately, the joke, as it were, is on her.

Whether you like Donald Trump or absolutely despise him, one thing should be abundantly clear. What Bloch and the Florida chapter of the SPJ are doing has absolutely nothing to do with journalism and reeks of the sort of personal feud that has animated and embodied all that has come to be meant by the oh-so catchy term Fake News.

In her zeal to stop President Trump from using the term Fake News, she has confirmed it.

Abe Cohn is an attorney at Cohn Legal, PLLC, a law firm designed specifically to provide a boutique experience for entrepreneurs. Abe’s area of expertise is intellectual property and startup law. On judicial interpretation, Abe is a firm believer that constitutional originalism is the only viable and indeed sustainable judicial philosophy by which the courts may approach the interpretation of legal texts. Abe’s views on matters of the law are fundamentally rooted in his orientation towards a civil-libertarian approach to the role of government vis-a-vis individual freedoms. To read more of his reports — Click Here Now.