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Wal-Mart Critic Has First Amendment Right to Sell ‘Walocaust’ Items, Maintain Web Site Critical of Retail Giant, Public Citizen Tells Court

March 7, 2006

Wal-Mart Critic Has First Amendment Right to Sell ‘Walocaust’ Items, Maintain Web Site Critical of Retail Giant, Public Citizen Tells Court

Georgia Man Developed Designs for T-shirts, Hats and More

   WASHINGTON, D.C. – A Web site and artistic designs created by Georgia resident Charles Smith to express his objections to Wal-Mart’s business practices are not only permissible under trademark law but are speech that should be protected by the First Amendment, Public Citizen said in a lawsuit filed in federal court in Atlanta, Ga. The lawsuit, filed with the American Civil Liberties Union of Georgia Foundation, is available here.

   Smith, a Conyers resident, created designs critical of Wal-Mart that merged Wal-Mart’s name with the word “holocaust” and a star, and arranged for CafePress.com, a California company, to put the design on T-shirts, hats, bumper stickers and other items for sale on the Internet. Smith reserved the domain name “walocaust.com” and arranged for his items to be sold on CafePress.com.

   In December 2005, Wal-Mart sent a letter and e-mail to Smith asserting ownership of trademarks in the name Wal-Mart, the star and the “smiley face” the company uses. The company threatened to sue Smith for infringing and diluting its trademarks and demanded he stop selling his items. Wal-Mart also demanded that Smith stop using the domain name “walocaust.com” and transfer it to Wal-Mart. Wal-Mart made a similar threat to CafePress.com, which immediately stopped making and selling Smith’s items.

   In the lawsuit, Public Citizen asserts that although Smith sold his anti-Wal-Mart merchandise, the designs themselves are non-commercial speech – a type of speech currently protected from trademark infringement and dilution lawsuits. The lawsuit also states that there is no likelihood of confusion about whether Smith’s designs or Web site are sponsored or affiliated by the retail giant, a common trademark violation claim. The lawsuit requests the court to rule that Smith is not infringing, diluting or cybersquatting on Wal-Mart’s trademarks because his speech is protected by the First Amendment.

 “Wal-Mart is using bully tactics to silence its critics,” said Paul Levy, the Public Citizen attorney representing Smith. “Claiming a trademark violation is an abuse of the trademark law. If Wal-Mart were to succeed, this would have a profound effect on every artist, photographer or writer who uses product names to criticize companies.”   

Added Gerald Weber, legal director of ACLU of Georgia, “Citizens should be free to creatively criticize even the biggest of corporations.”