No Doubt v. Activision Publishing, Inc. (2011) 192 Cal.App.4th 1018

No Doubt, a famous band, entered into a licensing agreement with Activision, publisher of the Band Hero video games, to use No Doubt’s likeness with up to three of its songs.  Activision allowed players to “unlock” the No Doubt band members to be used with other songs as well.  No Doubt sued for violation of publichity rights and unfair competition.  Activision filed an anti-slapp motion based on its alleged First Amendment right to use their personas. 

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Toyota Motor Sales, USA, Inc. v. Tabari, 610 F.3d 1171 (9th Cir. 2010)

Defendants are independent auto brokers – the “personal shoppers” of the auto world, who specialize in buying Lexus brand cars for their clients.  They use the domain names “buy-a-lexis.com” and “buyorleaselexus.com”.  The district court granted a permanent injunction against any use of the mark Lexus in their websites.  The 9th Circuit reversed and remanded based on nominative fair use doctrine. (more…)

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France once again reminds us how fortunate we are to live in a truly free country, where freedom of speech is often taken for granted.  Apparently, France is in the process of trying to pass a law to ban what it deems to be “pro-anorexia” websites and publications.  The new law would impose jail sentences of 2 to 3 years and impose fines of 30,000 euros ($47,400) to 45,000 euros ($71,100) on anyone who violates the law.  The legal standard is dubious (if not laughable):  ”Incitement to excessive thinness by publicising of any kind.”

According to the French health ministry, 90% of the country’s estimated 30,000 to 40,000 anorexics are young women, who are supposedly under constant pressure from the fashion, advertising, and movie industries to attain unhealthy weight levels.  No one will deny that encouraging young, impressionable girls to starve themselves, vomit, lie to doctors, and take appetite suppressants are bad things.  But the idea of trying to ban and fine websites—and jail the site operators—is a draconian cure that’s worse than the disease. 

And talk about a slippery slope.  What’s next?  How about sites that encourage excessive weight gain? Or consumption of fried foods?  Or excessive exercise (surely that’s killed quite a few people)?  And how does one even define “excessive thinness” anyway, let alone “incitement”?  The French ban doesn’t have quite the same urgency to it as the “incitement to imminent lawless action” standard articulated by the Supreme Court in Brandenburg v. Ohio to ban certain speech in extraordinary situations.  While encouraging anorexia is appalling, it certainly doesn’t rise to the level of mandating censorship.  The French government may be asking the right questions, but it’s getting the wrong answers. 

Of course such a law could never be passed in America.  Or rather, it could never go into effect.  It would be struck down by the courts so quickly on content discrimination, overbreadth, and/or vagueness grounds that the ink wouldn’t have time to dry.  Our democracy subscribes to the “marketplace of ideas” concept which provides that a free exchange of ideas will allow for the creation of the best policies and practices.  Quite simply, the cure for bad speech is good speech—or at least, more speech.  (While our government can curtail advertising for things such as smoking and alcohol, “commercial speech” is subject to some restriction and regulation.)

This isn’t the first time that France has demonstrated its tendency towards censorship.  In November of 2000, a French court ordered Yahoo! to stop selling Nazi memorabilia to French internet shoppers on auction sites due to France’s law that banned incitement of racial hatred.  (The French do like that “incitement” standard, don’t they?) Of course, this is the same country that passed a law banning the use of foreign words on television shows, radio broadcasts, business communications, and public service announcements if the French language had a “suitable local equivalent” which could be used instead.  What chutzpah!  What cojones!  Oh well, c’est la vie . . . .