In an article titled, The Upside of Intellectual Property Law’s Downside, Professors Christopher Cotropia and James Gibson discuss how IP’s downside, exclusion, can result in some positives or upsides. For example, so-called “copyright trolls” may be beneficial to society by shutting down and slowing the distribution of pornography. One relatively “hot topic” in IP law has been the presence and merits of so-called “trademark bullies”—ordinarily a well-resourced individual or large corporation, who uses overbroad trademark claims in a cease and desist letter with the effect of chilling speech, or stifling competition or creativity (for more on trademark bullying, see here and here). The target of the cease and desist letter usually capitulates in the face of the prospect of paying large legal fees.
Recently, an organization, Super Happy Fun America, set up a website to publicize its “straight parade.” In doing so, it also listed a group of companies that purportedly were either associated with the parade or were in negotiations to sponsor it. Apparently, the companies were not associated with or in negotiations with the parade in any way. A number of companies responded with cease and desist letters and one stands out. Adding to the fantastic list of creative cease and desist letters, an attorney at TripAdvisor sent a letter full of references to gay pride anthems. Do we have another example of an upside of intellectual property law? There doesn’t seem to be much free speech value in misrepresenting the relationship between one group and another—I guess I could find some comment here (that may eat up a fair bit of trademark law). Surely, this will squelch potentially harmful associations between entities. And, the added benefit of a creative cease and desist letter is the potential positive publicity and reinforcement of corporate values (at least in this case).
After receipt of the cease and desist letters, the organization is still using the marks with "Xs" on them (sometimes, but apparently with some advice of trademark and copyright counsel) and includes a nice list with reproductions of all of the cease and desist letters its received thus far, here (which includes apparently truthful statements about their relationship with those companies). Ultimately, it appears that free speech is a winner here--and intellectual property law did not stand in its way and, indeed, may have worked to eliminate confusion as to a "true and accurate relationship" and the messages are being heard. Here is a copy of the TripAdvisor letter: