Trump Campaign Uses Trademark Takedown to Try and Silence Critic

It seems that intellectual property is being used as a censorship tool once again. This time, the Trump campaign is trying to silence one of his critics.

The Trump administration, and his supporters, often complain that they are being silenced through one mechanism or another online. Some, including ourselves, have pointed to limiting the DMCA as one way to reduce censorship. However, Trump supporters have largely remained silent on the issue. Now, we are finding a little bit more why. The Trump campaign is being accused of using takedown demands to censor critics.

An editorial cartoonist organization has opened up about how they have received trademark violation complaints on their various platforms. The complaint is that TeeSpring is removing products and disabling an account after they have received complaints from the Trump campaign. An AAEC tweet:

Political cartoonist Clay Jones @claytoonz is reporting that his merch store at website @teespring was disabled without warning this week for allegedly using "trademarked [material] not allowed on the platform."
The offenders? Cartoons about MAGA, Colin Kaepernick & Taco Bell pic.twitter.com/LrHJa49f7z

— AAEC (@AAEC_Cartoonist) July 17, 2020

Political cartoonist Clay Jones @claytoonz is reporting that his merch store at website @teespring was disabled without warning this week for allegedly using “trademarked [material] not allowed on the platform.”

The offenders? Cartoons about MAGA, Colin Kaepernick & Taco Bell

The Fourth Estate supported the cartoonist by condemning the use of intellectual property takedown systems as a censorship tool:

https://twitter.com/FourthEstateOrg/status/1285178825870127104?cn=ZmxleGlibGVfcmVjcw%3D%3D&refsrc=email

We take a rather dim view of people and companies that use DMCA as a weapon of censorship.

I want to thank the @AAEC_Cartoonist for standing beside me in this dispute against the hypocrites at @teespring over free speech and satire. This isn’t a fight for me, it’s a fight for all of us who love satire and free speech. Know your rights.

What’s interesting here is that, back in December, TeeSpring also disabled Techdirts account for the vague reason of “copyright infringement”. What was infringing was never explained. So, this isn’t the first time TeeSpring disabled someone’s account for controversial reasons.

It isn’t just TeeSpring that the complaints are appearing on. It appears that RedBubble is also receiving the complaints as well. From the AAEC:

While Donald Trump complains about the “violation” of his free speech on Twitter, his campaign recently forced the removal of a political cartoon by Nick Anderson from the Redbubble website. Anderson is protesting the action with the help of the CBLDF.

Redbubble, like Cafe Press and other swag sites, produces T-shirts, mugs, stickers and whatnot with the image of your choice, and Anderson has been using it to provide products to fans of his political cartoons. Citing “trademark infringement,” the Trump Campaign demanded the website remove the cartoon because it didn’t have permission to use the word MAGA on red hats in a cartoon drawn by Anderson.

The AAEC has signed on to a letter from the Comic Book Legal Defense Fund pointing out the clear violation of Anderson’s First Amendment rights, and requesting Redbubble reinstate the cartoon on the product site.

“The removal arises from a meritless complaint by the Trump re-election campaign. The cartoon constitutes speech protected by the First Amendment, and its removal misuses mechanisms designed to protect intellectual property to suppress protected speech.”

The article goes on to say that RedBubble has restored the cartoon in question.

First of all, this is largely about trademark more than copyright. So, the first question is, did Trump actually trademark “Make America Great Again”? The answer is “yes” and you can check out the trademark approval at the United States Patent and Trade Office.

The next question is, does Fair Use apply to trademarks like it does with copyright? There is, in fact, a Fair Use doctrine for trademark as Wikipedia illustrates:

For the potentially infringing use of a trademark or service mark, fair use by a non-owner of the mark falls under two categories:

• Nominative fair use: referencing a mark to identify the actual goods and services that the trademark holder identifies with the mark. For example, it is not trademark infringement to refer to a printer produced by Casio as a “Casio printer”.
• Descriptive fair use: Using a descriptive mark in an ordinary, descriptive manner to describe a product or service. For example, describing a component within a dehumidifier as “honeycomb-shaped” was a fair use of a registered trademark for HONEYCOMBE dehumidifiers. In other words, for descriptive fair use to arise, the following must be true:
  • Plaintiff owns a mark that is descriptive of its goods or services (i.e., it immediately conveys information regarding quality, characteristic, function, feature, or intended use of the goods/services). If Plaintiff’s mark is suggestive (i.e., it requires thought or imagination to understand the nature of the underlying goods or services, such as TIDE for laundry detergent), arbitrary (i.e., a word or phrase that exists in language, but has no relation to the goods or services, such as APPLE for computers), or fanciful (i.e., a new word, created as a trademark, such as KODAK for cameras), descriptive fair use does not apply.
  • Defendant uses the mark as a descriptive word or phrase (i.e., to accurately describe something). If Defendant uses the mark as a trademark (i.e., a brand, product name, company name, etc.) or if Defendant uses the term in a suggestive manner, it is not descriptive fair use.

In this instance, the cartoonist used “MAGA” to describe a Trump supporter. If the Wikipedia description is anything to go by, this easily falls under the “Nominative fair use” part.

Furthermore, Trademark laws are used to guard against creating products that are made to be similar or confusingly similar to the actual products. In short, it’s supposed to legally prevent bootleg piracy. That is not what is happening here.

In this case, private companies are the ones removing the material. The act of the company removing content in response to a complaint itself isn’t really a violation of free speech. However, because Trump is the President of the United States, and therefore, part of the government, the Trump campaign actions could allow complaints of free speech to stand. Correct us if we are wrong of course.

now, the same problem is still in place: companies take a “shoot first, ask questions later” approach to copyright complaints. This is thanks to the notice-and-takedown system mandated by US law. While there are provisions that are supposed to guard against false and fraudulently filed complaints. Unfortunately, those laws are toothless and, in practice, have absolutely no repercussions for those who abuse the complaint system. Abuse of the system is well documented, tell us when someone actually faced the consequences of it via the laws that are supposed to stop false claims. The truth in the matter is, we have yet to see that.

Back in early June, we put forth the argument that copyright complaints against Trump is a good reason for Trump supporters to call for the removal of the notice-and-takedown requirements. Copyright has, of course, been used to silence criticism and other forms of what is otherwise protected free speech online. This issue has plagued social media and YouTube users for years. That sentiment was echoed as late as yesterday on TechDirt by Mike Masnick. It seems that we might have a partial answer why: because Trump and his supporters are also using intellectual property takedown systems to silence criticism. Why nullify a weapon they can use themselves?

Correction: While some sources are saying the DMCA was used in this case, there may not be much evidence to suggest that the DMCA itself was used in this specific takedown even though the DMCA does compel US-based websites to implement a mechanism for takedowns. This detail has been tweaked in the article.

Drew Wilson on Twitter: @icecube85 and Facebook.