Activists May Use Their Targets' Trademarks 203
lee1 writes "Sometimes political activists use a company's trademark as part of a campaign to embarrass it or call attention to an issue. And sometimes the company sues, claiming that they own the mark and its satirical use is prohibited. Now a Utah court has ruled that such suits must fail because the parodic use of the mark is not commercial and is a form of protected speech."
Also (Score:5, Insightful)
Re:Also (Score:5, Insightful)
Simple. You stack the panels with consumer advocates with baseball bats.
A big victory... (Score:2)
Re:A big victory... (Score:5, Insightful)
Im shocked it came out of a US court at all.
Re:A big victory... (Score:5, Insightful)
Im shocked it came out of a US court at all.
You may not have to endure that shock for long.
An appeal may be forthcoming, with a properly prepped judge.
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Where's all this Utah hate coming from? I spent a year there, and didn't think the culture was any different from any other US state (except possibly california).
Re:A big victory... (Score:5, Informative)
The culture is extremely different. You could make a plausible case that the state was founded as a theocracy, and that those roots are still very much there.
Just note the state's rules on alcohol.
The state has no open-door saloons. Full liquor service is available only to dues-paying members of "private" social clubs or at the 470 restaurants with liquor stocks they cannot advertise, display or even mention unless a customer asks first.
The state's 121 taverns can pour only "light" beer, or 3.2 percent alcohol, and no other alcoholic drinks. No membership is required at taverns. Grocery stores can sell only light beer, too.
Wine, hard liquor and heavy beer can be purchased at 36 state-run liquor stores - if you can find them. Typically they are tucked away in warehouse districts and off major thoroughfares.
A quota limits the number of private clubs to one per 7,000 Utah residents, or 295 clubs concentrated primarily in Salt Lake County and Park City. Minimum club dues by law are $12 a year, though visitors can buy a two-week membership for $5. Or visitors can ask the guy on the next barstool to sponsor them as guests.
I grew up in the bible belt and WE weren't even that strict.
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I guess the conflation of bible thumping and big business comes from rolling them into one party.
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And a theocracy would want to protect the interests of big business because... ?
Because they're run by the same damn people? Controlling the prols and sucking down their money is a common goal...
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Not insightful. The point is that where ever you find "very religious people", you find "republicans" and the GOP has traditionally been more generous to big business. It may not be causation but there certainly is a documented correlation. The more religious a state is, the more likely it is a red state.
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Remember that the Pledge of Allegiance was written for the youth group of the "Christian Socialists" way back when. It wasn't always this way.
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Organised religion is usually value conservative; it embraces traditional values and structures like family and morals. Liberalism and socialism, on the other hand, want to break up traditional structures, because they believe they can redesign society in a better way. This often causes value conservatists and economic conservatists to become allies against liberalism or socialism.
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Hard to imagine, but the fundies did throw in with the Republicans for some reason.
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I was pointing out that the culture is extremely different then the rest of the country.
Are you saying its not?
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Most of that info is out of date as of last June, just FYI.
For instance, bars are no longer required to be private clubs; and I can think of 6 liquor stores within 2 miles of me, none of which are the least bit "tucked away".
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Correct. I live in a "dry county". Driving across county or state lines is an invitation for the cops to pull you over for a search. Then you have the hassle of explaining to them that you have a legal right NOT to be searched, they threaten to call in a K-9 dog, sometimes they are serious about the dog, sometimes not - but whatever, it wastes an honest citizen's time.
Arkansas had a drive going a few years back to change all the dry counties to wet, with the rationale that forcing people to drive 15 or 50
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I was thinking states, but yes some counties are dry. I should have worded that better.
Last I heard Jack Daniels is made in a dry county.
A dry county is different from an almost dry state. You can cross the county line and go get booze. In Utah there is only 36 places in the entire state where you can purchase anything harder then a 3.2% beer.
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You heard correctly. But they have distillery tours anyway :)
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One of those times I wish I had mod points....
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I spent a year there, and didn't think the culture was any different from any other US state...
Then you weren't paying attention. I spent ten months there... it was the longest ten years of my life! Ba dum shhhh!
Re:A big victory... (Score:5, Informative)
They were pressured to join the Mormon church. The relatives I have who stayed there all caved in and now toe the line. They gripe and mock in private, but they go to meetings and tithe.
It is better in SLC (or as I've seen it humorously abbreviated SL,UT) - it is easy for tourists or short term visitors to forget they are in the beehive state. Things take a darker turn if you are perceived as wanting to become a permanent resident.
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And then the losers can appeal all the way to the USSC where it's anyones guess what'll happen.
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Uh, no. You are simply wrong about this. http://en.wikipedia.org/wiki/Trade_mark#Maintaining_rights [wikipedia.org]
You loose.
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You loose.
He's tight. You lose.
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No they won't. It may be diluted, but using it in satire is not the equivalent of taking it for your own use. The trademark stays theirs.
Re:A big victory... (Score:5, Informative)
This is not about free speech. The companies MUST file a law suit, because otherwise they loose their trademark.
This has nothing to do with satirical or political or whatever. If they don't sue or at least protest,they loose the trademark.
Nope.
Overview of Trademark Law [harvard.edu]: "The standard is "likelihood of confusion." To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent."
So - unless the political activists are trying to sell a similar product or service that will confuse consumers then it cannot infringe, and the companies filing the suits know that very, very well.
You are just trying to justify a sub-class of SLAPP suits: http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation [wikipedia.org].
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Not really. They only have to if their trademark is being used as a generic term (Xerox comes to mind) or someone uses their trademark. Satirical speech has never been grounds for losing your trademark.
If, say, oil spilled on an ocean would be called "bee pee" and that entered colloquial speech, a certain company might be pressured to sue...
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Ten words you need to stop misspelling [theoatmeal.com]
Pointless corrections set off alarms. [flickr.com]
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The loose lose misspelling, much as it irritates me, is understandable because of pronounciation. Consider
chose - choose
lose - loose.
Of the above, choose rhymes with lose, so I can certainly appreciate why people think choose rhymes with loose.
Perhaps if we had more moose around people would spell this correctly (moose rhymes with loose, but not choose)
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Nah, I agree with the Oatmeal and (elsewhere the Angry Flower.)
We need to quit mis-spelling those top ten words ... on a tech site... which specializes in syntax structures.
Let's get this straight, now.
Lose. All the glorious things you can think of to lose.
LOOse is ... Goatse.
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Oh, I'm not EXCUSING it, I'm merely suggesting that the Oatmeal strategy may fail when there's other forces pushing people to misspelling. IDENTIFYING those additional reasons may ALSO help stop people from misspelling it.
loose choose moose
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We need to quit mis-spelling those top ten words ... on a tech site... which specializes in syntax structures.
This is the comments section, not the actual story.
Let's get this straight, now.
Chill. Think about it using your own rationale: We're on a tech site... not talking about tech.
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nose - noose
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I think that it is a regional accent thing. To me loose rhymes with choose but not moose.
Somehow... (Score:2)
...I doubt that ICANN [slashdot.org] is going to be taking this ruling into account in deciding a company can take your domain away, and are willing to pay ICANN $300 to assert a trademark.
Ryan Fenton
This could get interesting (Score:2)
I can't wait for the BigCoSucks Federation* (*funded by Mega Incorporated) and MegaIncSuxx2** (**funded by Big Company) duke it out.
===
Any resemblance between Big Company and Mega Incorporated and any real entity is purely satirical and is not intended for commercial purposes. My lawyer made me say that.
Finally! (Score:3, Funny)
Utah, huh? (Score:2)
Well, that isn't going to affect much.
But it probably does mean that if you have a web site hosted in Utah and a shell company also in Utah that you can claim your use of a trademark isn't infringing based on this ruling. Because that is all it would take.
This then opens the door to a shell company and hosting being used by literally anyone to denigrate products. I wonder how much Pepsi would be willing to pay for a trademark-laden anti-Coke site? Or a Toyota-bashing site offered to GM? There has to be
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Satire != Slander
Satire pointedly accuses of some misdoings or other transgressions that the satirized actually committed. It might exaggerate certain traits or aspects, but it does not pull accusations out of its ass and tries to "pointlessly" ruin the reputation of someone, and it never does so with the intent to benefit from it other than from the attention it gets. Satire never tries to redirect the affection of the spectators to other, competing products and companies.
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For the purposes of trademark law, commercial use of a mark means using it to sell goods or services, period. Advertising is not generally considered a product unless your company is an ad network.
Using the name of a website to sell ads on that site is purely a descriptive use of the mark, in that it is the only way to identify that website. In general, descriptive uses are explicitly not considered commercial use. Thus, it is highly unlikely that advertising on such a site would constitute infringement
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For the purposes of trademark law, commercial use of a mark means using it to sell goods or services, period. Advertising is not generally considered a product unless your company is an ad network.
The company funding the shell company would be guilty of infringement, since they used the shell company to advertise their product.
Think about it: corporations use advertising firms to design their advertising campaigns all the time, but if one of their ads break trademark (or any other) law, it's the corporation which gets sued.
I Knew it (Score:2)
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i would LOVE to see anonymous sue anybody for trademark infringement :)
or, perhaps i should register "anonymous" as a trademark and then sue random IPs?
Domain names too? (Score:2)
Does this mean I can register apple-bites.com ?
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You could have registered apple-bites.com anyway. Just make it your blog about Granny Smiths and Red Delicious and you'd be fine.
Fair use (Score:3)
Isn't satirical work basically the definition of fair use?
Re:Fair use (Score:4, Interesting)
Re:Fair use (Score:4, Informative)
Not for trademarks, it isn't. Fair use of trademarks extends primarily to "nominative use". That is, we get to use your name when we're talking about you. Any other attempt to profit from the mark is controlled by the company. It should be fairly clear that you can use "Foo(tm)" to declare that "Foo(tm) Sucks", but if there's a chance of consumer confusion between your use of the mark and the company's, you get into murky legal waters. The court literally ends up having to decide, on a case-by-case basis, whether the joke is actually funny.
As with everything else in law, there are about a million complications, caveats, and such like. A good article on the subject:
http://www.cll.com/articles/trademark-parody-statutory-and-nominative-fair-use-under-the-lanham-act#PARODY%20AS%20FAIR%20USE [cll.com]
Good News! (Score:2)
Unexpected good news is always welcome and always refreshing. Nice to see the courts doing something right for the people.
Turnabout... (Score:2)
...is fair play. Thia also means the "Big Corps" can likewise use the tradmarks/tradenames of the activists.
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Sure, why not?
Somehow I can't see how any corporation could or why they would satirize their activist counterparts. As far as I can tell, corporations don't want to give them more exposure than they already get for protesting.
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That's not really a huge issue. Coca-cola isn't in the habit of drawing attention to the fact that there are coalitions of people exposing their use of paramilitary fighters to intimidate or kill union organizers... and so on.
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The company was trying to sue for trademark violation. If they had won, it could have prevented people from using a company's name in legitimate criticism.
If we want to make it illegal to impersonate an organisation, there are better ways to do it than to base it on trademark law.
Also good news for Weird Al. (Score:2)
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I was under the impression that he generally obtains permission of the artists he parodies before releasing his work.
Not that I follow him too closely, but I recently noted an article on Google News about miscommunication between Weird Al and Lady Gaga's manager. He'd created a parody of "Born this way" and complained that she had refused to give him permission to release it. Lady Gaga responded that she'd never seen the request and that she'd love to have a Weird Al parody of one of her songs. The implicat
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IIRC he always asks whether the artist had any problems with a parody, even though fair use doesn't require him to, and he refrains from using material from artists who don't want to be parodied.
I guess he would be the one that profits the least from the ruling of all the people who might be affected. I mean, be honest, given his popularity, being parodied by him is maybe the best kind of advertising you could possibly have, exposing you to an audience that would otherwise not have heard about your song. I,
Not the correct reason (Score:3)
While I cheer the outcome of this ruling, the reasoning behind it is, IMHO, not the correct one to decide the issue if applicability of a trademark. The reasoning should be based on the fact that an established trademark is the reference to a specific party in trade (e.g. a company, or even an individual where that applies). Normally we expect that the reference is made by that party itself. However, reference can be made by another party ... as long as the reference is the correct one.
The names of companies like Apple and Google, and the products of companies like Ipod or Windows, are trademarks that are established. As long as a reference to "Ipod" refers to the Apple product, and a reference to "Windows" refers to the Microsoft product, then they are correct usage of trademark. If I say "I own an Ipod", then I have committed no violation of that trademark (because I really do own one unit of that Apple product). If I blog about how "Windows is totally insecure", I may or may not be telling a truth about its security, but I'm still referring to the Microsoft product. It's not a trademark violation.
What I cannot do is make a misreference, especially if I am doing so as part of commerce. But it is already commonplace to make reference to competing products in a commercial context. It does get fuzzy here, because merely using the trademark icon may get out of context and be considered something that is attracting. If Pepsi were to put the CocaCola logo on the Pepsi web site in a very large image, and in smaller letters say "that product is not as good as ours", it could be mistaken as a use of the trademark to identify its own products. But if they keep the logo very small, especially with other soft drink logos around, and say things like "independent taste tests of all these products rank ours number one" then it can be clearly a statement of fact (which, if untrue, may be an issue of defamation ... but is not a trademark violation).
The above opinions are NOT a statement of how the law in the USA is, but rather, how I believe it SHOULD be, and how I hope judges would rule to make it be so, if we can't get rid of the Republicans in Congress to make the right statutes.
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No, if this ruling had failed, you could call a spade a spade, but you couldn't use their spade-shaped logo on your website. The logo is not the company name, it's a created image that belongs to the company. The company name is public record. The company's logo is company property.
This ruling says you can use company property to mock the company. Should have been obvious, but needed a court test for some legal reason. Now it's precedent. Yippee...
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The company name is also part of the trademark. Both the name and the logo are protected by trademark law. Both can be used to reference a company, for example, in a newspaper article about the company, but may not be used commercially in a way which causes confusion with a competing product.
The logotype may also be protected by copyright law, but generally it's considered fair use to use a copyrighted logotype in a newspaper article or criticism of the company.
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What I cannot do is make a misreference, especially if I am doing so as part of commerce.
Why should it be illegal to use a trademarked name incorrectly in non-commercial use? That'd be like legislating against incorrect grammar.
Slandering an organisation by impersonating it and making ludicrous statements in its name is already covered by slander and libel laws. In this case, there wasn't enough grounds to sue for slander and libel, so the company tried to hit them with trademark infringement. The judge ruled against the trademark infringement claims, but that doesn't mean it's always okay to i
SCO Judge? (Score:2)
Same Dale Kimball?
A shame he did not have a sudden break out of common sense during the SCO fiasco...
Hustler Magazine v. Falwell (Score:2)
From the article:
In 1988, Flynt [wikipedia.org] won an important Supreme Court decision, Hustler Magazine v. Falwell, after being sued by Reverend Jerry Falwell in 1983 over an offensive ad parody in Hustler that suggested that Falwell's first sexual encounter was with his mother in an out-house. Falwell sued Flynt, citing emotional distress caused by the ad. The decision clarified that public figures cannot recover damages for "intentional infliction
Ummm... news please? (Score:2)
is not commercial (Score:3)
Now a Utah court has ruled that such suits must fail because the parodic use of the mark is not commercial and is a form of protected speech.
People need to be careful about this distinction. The judge has clearly supported noncommercial parody's. But a for profit company like the Onion may still be at risk.
Alright! Let's Piss of the Entertainment Cartels (Score:2)
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Don't worry. I'm sure the judge has twelve wives and seventy children under the age of 18.
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Hmmm, touchy Mormon with mod points.
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I don't care about bad taste jokes, being a South Park fan, but get your facts straight if you're going to make a joke. Plural Marriage has been banned in the Church of Jesus Christ of Latter-day Saints since 1890 [wikipedia.org] and those choosing to ignore this ban (very rare) are subject to excommunication.
wink wink nudge nudge
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I don't care about bad taste jokes, being a South Park fan, but get your facts straight if you're going to make a joke. Plural Marriage has been banned in the Church of Jesus Christ of Latter-day Saints since 1890 [wikipedia.org] and those choosing to ignore this ban (very rare) are subject to excommunication.
wink wink nudge nudge
Say no more.
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And if he wants to, a mistress and a pet goat he blows every night.
As long as he metes out sensible judgements, he's still a good judge in my books.
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Wow. Twelve wives under the age of 18? That's pretty impressive....
But enough about why commas can sometimes be useful for adding clarity. I'm wondering what impact this decision will have with regards to the URS process discussion.
Re:PETA (Score:5, Funny)
The National Association of Marlon Brando Look-Alikes is already working on its appeal.
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Ever ate that stuff? I tell you, when you sit on the can, you KNOW that this acronym is apt!
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You have a digestive issue with pita bread? It's bread. Perhaps you meants to joke about some other food?
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Perhaps he meant "sitting on the can (which he keeps his bread in)"?
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Big Satire has a huge lobbing division and many offices in DC.
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They even own their own Senator!
Re:Senators! (Score:2)
Collectible Senators and Representatives!
Wizards of the Coast Likes This.
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Oh, they sure do! I see their antics on C-SPAN from time to time, these guys are great! Make me laugh every single time.
Be careful when meddling with the satirists, they seem to have a powerful network going. Some of their jokes even get turned into laws!
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what do they lob?
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With defamation there has to be lying involved.
If you tell the truth about the corporation, then no they cannot sue you for defamation. Or they could, but as long as you didn't go bankrupt in the process you'd win.
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Nowadays, you cannot sue for defamation without invoking the Streissand effect.
There are a lot of idiots who buy a product or service, use it improperly or break it, and then claim it doesn't work and start blogs whining about the fact that the BigBadCorp won't give them a refund.
Jerkasses
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But let's be frank here, the fallout usually drops on their head, then.
Or how do you feel about the lady that sued McD for hot coffee after spilling it on her lap by being DUMB enough to hold it there while driving? Or the microwaving-the-poodle incident?
The Streisand-Effect only works on companies that actually do something wrong. If they get sued by people too stupid to find their own ass with both hands, you'll usually see these people bearing the brunt.
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Nobody else seems to be looking anything up, so I won't either.
IIRC, the woman bought a cup of coffee, and held it between her legs while parked. She removed the lid to add white liquid (probably not cream) and/or sugar, and the cup collapsed. The burns resulted in substantial medical bills, which she asked McDonald's to pay.
The critical factor here was that the cup was deemed to be too flimsy, and that McDonald's was negligent in not providing unusually hot liquids in cups that could stay intact onc
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To back up scot4875 'they' have recently attempted to rehabilitate this stupid old woman and her shister.
You are all expected to change your opinion about this case immediately and stop using words like 'shister'. Don't say you haven't been warned.
The coffee was hot. Don't you understand, it was too hot to drink immediately. That's unheard of. She had no responsibility not to spill a hot drink on herself and no reasonable person ever expects coffee too hot to drink.
The lawyer involved was a public se
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It wasn't that simple. For example, it turned out that the McDonald's coffee was a lot hotter than ordinary coffee, which made the burns much more severe than they needed to be, and that McDonald's were aware, through their own marketing research, that their coffee was often drunk in the car.
I'm not saying the damages were reasonable, but the case wasn't as simple as people make it out to be.
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not everywhere. and the burden of proof is on the defendant.
in Australia, truth is flat-out not a valid defense. you can still defame someone if you simply publicize something they're known to have done.
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Same thing in Sweden. For example, a man was convicted(*) for defaming a woman, because he was spreading around a video where they had sex, which caused the woman to receive snide remarks from her friends and acquiantances. The crucial factor the court takes into account is the damage to someone's reputation. It's not necessarily justified because it's true.
(*) Defamation can be a criminal offense here, and doesn't need to be handled through a lawsuit.
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mods = GOP members with no sense of humour.
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Oh, is this the new version of:
1. Bush is responsible for war crimes.
2. Oh, because Clinton isn't, you Clinton-lover!
?
Just want to make sure I'm up to date on my political strawman arguments.