Naturally, Rescuecom, the plaintiff, is appealing the decision. The case is waiting its turn in the US 2nd Circuit Court of Appeals. Now the Electronic Freedom Foundation has filed an amicus brief. In the brief, they claim that the use of trademarks in ads is in the public interest, citing the First Amendment.
EFF Staff Attorney Jason Schultz is quoted in the press release:
On the Internet, trademarks aren’t just identifiers. They are essential navigation tools and vehicles of expression. Quashing this speech goes against both the law and the public interest.
What are the odds on the appeal? The 2nd Circuit has heard cases like this before. In 1989, they ruled that “the rights of the trademark owner must be balanced against the interests of free speech whether the unauthorized use is for expressive purposes” which includes criticism (250 Middleton, The Law of Public Communication, 5th ed).
Let us not forget, however, that the advertising (which is, at its heart, what AdWords is, no matter what the message you’re advertising conveys), is a “second class citizen” when it come to First Amendment protections. Political speech is most protected of all types of speech.
On the other hand, criticizing a trademarked product does seem almost political in nature. Opinion, if I’m remembering correctly, is at least slightly more ‘protected’ than pure advertising.
Is criticizing a product and advertising that criticism more political/opinion or advertising speech?
(No, I’m not a lawyer, but I do watch a lot of Law & Order.)