Part of America’s trend over the past couple of decades toward insanely overbroad readings of intellectual property concepts has been a trend toward firms trying to assert that their ownership of trademarks constitutes some kind of wide-ranging repeal of the first amendment. Thus, Luis Vuitton has decided to send a cease and desist order to the University of Pennsylvania Law School over the poster you see on the left.
Their lawyer, Michael Pantalony, writes that “this egregious action is not only a serious willful infringement and knowingly dilutes the LV Trademarks, but also may mislead others into thinking this type of unlawful activity is somehow ‘legal’ or constitutes ‘fair use’ because the Penn Intellectual Property Group is sponsoring a seminar on fashion law and ‘must be experts.’ “
The university’s general counsel is mounting a fairly narrow defense based on the right to parody, and of course that’s the smart legal strategy since the lawyer’s job is to win the case and not make a point. But from a journalistic perspective, quibbling over whether or not this poster constitutes a parody is really missing the boat. In a decent society you have to have an overwhelming presumption that a person is allowed to put whatever he wants on a poster. That’s what it means to leave in a country featuring the freedom of speech and freedom of the press. There are of course restrictions on where you can place a poster, but that’s not what’s at issue here. The claim is that Louis Vuitton has the authority to say what kinds of posters Penn Law School may and may not print and design. But why would that be? Under what circumstances would we want to grant private firms wide-ranging authority to censor the speech of academic institutions? I can’t really think of any.
Now consider a different situation. Penn, like most universities, licenses and sells Penn-branded apparel. Louis Vuitton is also in the apparel business. You can imagine Penn or a Penn-licensee creating some Penn-licensed apparel that featured a pattern which might lead a consumer to believe that it was Vuitton-designed Penn-licensed apparal. Louis Vuitton might then reasonably order them to cease and desist their dilution of Vuitton’s distinctive mark. Then you might have a controversy as to whether the pattern constituted some kind of parody worthy of an exemption. But when it comes to a poster there’s simply no possible question of trademark law. Imagine Penn researchers want to host a discussion of research on the public health effect of soda, and want to advertise that panel with a photograph of a Coca-Cola can. If Coke tries to turn around and sue them, we don’t want Penn’s right to discuss Coca-Cola to be limited by some kind of parody concept. The issue is that Coke is in the beverage trade and Louis Vuitton is in the apparel trade whereas these are posters. There’s no possible confusion or dilution.