The case involves Charles Smith, a rather offbeat critic who created two portmanteaus to describe the megalithic retailer Wal-Mart somewhat, um, unfavorably: WAL-OCAUST and WAL-QUEDA. He set up web sites and also sold t-shirts and other novelty items at CafePress bearing slogans using the terms — and imitating the store’s blue font — such as “WAL-OCAUST: Come for the LOW prices/Stay for the KNIFE fights.” (If you are thinking “huh?” please remember that parody need not be the most incisive form of art.)
The good news first:
Wal-Mart lost. On the way to this decision, the court also:
Now the bad news:
The opinion was 87 pages long and focused on likelihood of confusion. Some 45 (!) of those pages were devoted to an exhaustive analysis of Wal-Mart’s survey evidence of confusion and objections to its methodology by two experts hired by Smith. (By the way, Wal-Mart’s survey was designed by Jacob Jacoby, among the most ubiquitous of paid experts on trademark surveys who has testified in 150 cases.) In this case, Smith was represented by Paul Allen Levy of the advocacy group Public Citizen. But a costly battle of the survey experts simply is not an option for most corporate critics who receive cease-and-desist letters. If such an obvious parody requires that much expensive discovery, it may not matter if the few intrepid defendants who litigate the cases can win.
So, celebrate Wal-Mart’s inability to silence this critic. But we should also ask ourselves if a legal structure that requires extensive expert discovery and an 87-page summary judgment opinion is doing its job to protect speech.