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Fake Trademark Application for “Fake News?”

What does “fake news” mean to you?

When we think about “fake news,” the first thing that usually comes to mind is a person. More specifically, we think of President Donald Trump, right?  His opponents say this term only comes out when he is the subject of an unflattering news story.  No matter what side of the political aisle you stand, we can all agree there is an inordinate amount of over-hyped and inaccurate information disseminated across social media and news outlets.

One Canadian advertising agency, Wax Partnership (WP), along with the Florida Chapter of the Society of Professional Journalists (SPJ) are working to bring this issue into the forefront.

The WP ad agency created a video they have branded “fake news.” The agency claims this media literary campaign will help consumers learn the difference between credible journalistic sources and intentionally misleading, fake news.

Sounds admirable, initially.

However, the video more accurately appears to be an attempt to call out President Trump, in their opinion, for misuse of the term. More recently the groups have claimed to have filed a trademark application for “fake news,” admittedly, as a joke. Nothing more than a political ploy to throw shade on the President. They have gone so far as to send a so-called cease-and-desist letter to POTUS.

What was SPJ’s point exactly?

According to SPJ’s mission statement, the point was to get people to think about professional journalism for a moment. Historically, SPJ has been known for protecting journalists’ First Amendment rights. So, is it a good look for them to use trademark law to silence Trump? Such intended use of the Federal Trademark system brings into question the purpose of registering a trademark.

What is a trademark?

The function of a trademark is to protect a distinct name that is used in commerce to refer to a particular good or service. Registering a trademark is to prevent competitors from using the name in the marketplace to refer to the same good or service, not to prevent misuse of a term. In fact, in the trademark world, using a term correctly deems that term “generic” and is, therefore, not even eligible to trademark. Hence, using the term “fake news” to refer to news that is fake makes the term generic. It doesn’t meet the trademark requirement of distinctiveness.

The Reality?

In a stretch, if the Fake News trademark is approved, does SPJ know that owning a trademark doesn’t grant the right to prevent others from uttering the words, “fake news,” in common conversation? Owning a trademark prevents the use of a term in the realm of business, not politics. They may be mistaking trademark law for the law of defamation, which gives a right to prevent people from making false statements about a person or entity. Even then, pure opinions are protected as free speech by the First Amendment of the U.S. Constitution. Fortunately, we can tell they understand this reality, because they are honestly calling the  trademark application “satire.”

If you are interested in registering a trademark (with real commercial implications), you need the help of an experienced trademark attorney.

Contact us at Boyer Law Firm for guidance.

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