Skip to comments.An Alternate Theory of Liability Against the New York Times - The Lanham Act (NYT Vulnerable NOW)
Posted on 05/18/2004 1:51:34 PM PDT by jmstein7
An Alternate Theory of Liability Against the New York Times - The Lanham Act
In a previous posting, I put forth one plausible cause of legal action against the New York Times. After reading your comments, and alternate, and probably more simple theory of liability came to mind -- §43(a)(1) of the Lanham Act.
Under §43(a)(1)(B) of the Lanham Act, any person damaged by a false representation has a right of action against the fraud or deception of the defendant company. This right extends to consumers, e.g. the purchaser of a newspaper. This makes for great class action suits. How is this relevant? Simple!
The Boston Globe was caught faking "prisoner abuse photos" and reporting them as "hard news." That is fraud. Further, the Boston Globe is a subsidiary of the New York Times, and it represents itself as "A New York Times Company." Thus, the Boston Globe uses the NYT trademark -- a symbol that carries with it goodwill and a representation of a certain quality of news. A reasonable consumer expects a certain quality of product from "a New York Times Company." Thus, this sort of fraud injures the consuming public. By both committing fraud and representing itself as "A New York Times Company," the Boston Globe is guilty of misrepresentation and false advertising. The Lanham Act may provide consumers a Federal cause of action here.
With me so far? Good.
Next, this creates a problem for the New York Times itself -- it has issued a "naked license." The Boston Globe has a license to use the NYT trademark. However, the licensor has the duty to monitor and control the quality of the licensed product -- i.e. the product using its trademark. Here, because the Boston Globe has committed a fraud by faking photos and reporting them as hard news, the NYT is responsible for failing to exert adequate quality control over the product of its licensee. The result? A naked license. This is Trademark Suicide -- the consequence is that all priority in the New York Times Trademark has been destroyed until the "naked license" expires.
For these reasons, I believe that the New York Times is very, very vulnerable to suit at this moment.
Where do I mail my donation? I support this approach 100%
Getting more interesting...
Or we could just beat them in the market place with a better product.
The Lanham Act provides a Federal cause of action for unfair competition. It is inapplicable to this case and, at any rate, the first amendment is a defense to this provision. I think the NY Times Standard would save the NY Times yet again. Moreover, although the Lanham Act states "anyone" most courts have held that not just anyone has a cause of action, i.e. only competitors who are injured have a cause of action under Section 43(a)
Nah. I cheer for "alternate theory." The courtroom is the preferred battleground of the left. It's where they elevate their preferences to law through through coercive force of the state.
ME TOO, I'll pitch in! :)
I have been thinking about your theory. I am so tired of being lied to by the "major"media. I firmly believe in the first amendment, but, that does not give them the constitution right to lie in their stories. Usually public people are protected, but what about the people that spend their money to buy these rags or pay cable or sat bills to have access to them. Shouldn't we have an expectation of truth and simple due diligence in writing a story. Also, when "they" obviously become a political arm of some party "evil Dums" doesn't that change everything. I don't think just firing a ceo should limit liability.
IOW, if you can't beat them, join them?
I do not think reducing our side to their level is a good thing, for if we act like them, don't we become them?
Professor Platt, is that you???
"Flip's" theory is plausible, but it is still a litigable issue, as the point of litigating is to change precedent. Thus, it could still, technically, succeed, and change the law if it is argued well.
So, don't despair... the party is not over.
The advertisers pay for the advertisements.
You the consumer pay for the "distribution" and the "material goods", that is, the newsprint and the ink.
If the news stories are false, sixtyninezillionbillion Supreme Court decisions stand behind their right to print 'em!
Some of us believe that even commercial transactions should be free of state interference (thinking of the state in it's manifestation as the courts and their jackbooted thugs).
If your feelings were hurt by reading falsehoods, best keep that problem to yourself!
No, and I am sorry to rain on the old parade.
This is the way to go.
You could have former subscribers who have cancelled in the last year of so because of the non news pretending to be news in the NY Slimes, Boston Globe, Santa Rosa Democrat and other Slimes owned newspapers.
Even those who buy the Slimes at a newsstand could get involved.
Um, the point of litigating is not to change precedent. It is to provide a remedy for injury (or, in limited circumstances, a declaration of rights or duties).
Thus far, you have suggested two almost perfectly frivolous lawsuits.
A rudimentary problem (besides inapplicability of the Lanham Act, and the brick wall of the business judgment rule), is reliance. Reliance in a fraud case against the NYT would be impossible to prove if your allegation is that the NYT cannot be believed in the first instance because of an inherent bias in its reporting. Just what are you, as a litigant, going to offer up as conduct or actions taken by you in reasonable reliance on what you claim to be an inherently unreliable newspaper.
And then of course, there are damages. The inventive and far-fetched damage scenario in your Fordham article notwithstanding, your monetary injury would be, what, the buck you paid for the paper you don't trust to begin with?
I understand enthusiasm when in law school, but temper it when you get out, or you'll be facing some highly irritated judges with the power to impose some pretty serious sanctions.
Perhaps Congressman Billybob will remember this.
The answer is "no."
And furthermore, there is no lawsuit that can be filed against the NYT or any other media organization to accomplish what you want to do.
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