Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

An Alternate Theory of Liability Against the New York Times - The Lanham Act (NYT Vulnerable NOW)
FR ^ | 5-18-04

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.


TOPICS: Editorial
KEYWORDS: bostonglobe; nyt

1 posted on 05/18/2004 1:51:41 PM PDT by jmstein7
[ Post Reply | Private Reply | View Replies]

To: Grampa Dave; Rockingham; BJClinton; Straight Vermonter; rogueleader; bert; gdani; Clobbersaurus; ...

Alternate Theory!


2 posted on 05/18/2004 1:55:03 PM PDT by jmstein7 (Real Men Don't Need Chunks of Government Metal on Their Chests to be Heroes)
[ Post Reply | Private Reply | To 1 | View Replies]

To: jmstein7

Where do I mail my donation? I support this approach 100%


3 posted on 05/18/2004 1:55:34 PM PDT by The Ghost of FReepers Past (Legislatures are so outdated. If you want real political victory, take your issue to court.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: jmstein7

Getting more interesting...


4 posted on 05/18/2004 1:55:38 PM PDT by BJClinton (I want some of what choppersrule is smoking.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: jmstein7

Or we could just beat them in the market place with a better product.


5 posted on 05/18/2004 1:55:38 PM PDT by inflation (Cuba = BAD, China = Good? Why, should both be treated the way Cuba is?)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Mich0127; RightRules; MeekOneGOP; Peach; onyx; backhoe; Mia T; 68-69TonkinGulfYachtClub; ...

Alternate theory!


6 posted on 05/18/2004 1:56:04 PM PDT by jmstein7 (Real Men Don't Need Chunks of Government Metal on Their Chests to be Heroes)
[ Post Reply | Private Reply | To 2 | View Replies]

To: jmstein7

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)


7 posted on 05/18/2004 2:00:29 PM PDT by FlipWilson
[ Post Reply | Private Reply | To 1 | View Replies]

To: inflation

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.


8 posted on 05/18/2004 2:03:21 PM PDT by Sgt_Schultze
[ Post Reply | Private Reply | To 5 | View Replies]

To: The Ghost of FReepers Past

ME TOO, I'll pitch in! :)


9 posted on 05/18/2004 2:04:19 PM PDT by RoseofTexas
[ Post Reply | Private Reply | To 3 | View Replies]

To: FlipWilson
Spoilsport. ;-)

Oh well, it was fun while it lasted.

Back to the 'ole drawing board.
10 posted on 05/18/2004 2:04:39 PM PDT by Bon mots
[ Post Reply | Private Reply | To 7 | View Replies]

To: jmstein7

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.


11 posted on 05/18/2004 2:06:22 PM PDT by marty60
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sgt_Schultze

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?


12 posted on 05/18/2004 2:06:36 PM PDT by inflation (Cuba = BAD, China = Good? Why, should both be treated the way Cuba is?)
[ Post Reply | Private Reply | To 8 | View Replies]

To: FlipWilson

Professor Platt, is that you???


13 posted on 05/18/2004 2:07:08 PM PDT by jmstein7 (Real Men Don't Need Chunks of Government Metal on Their Chests to be Heroes)
[ Post Reply | Private Reply | To 7 | View Replies]

To: Bon mots

"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.


14 posted on 05/18/2004 2:10:36 PM PDT by jmstein7 (Real Men Don't Need Chunks of Government Metal on Their Chests to be Heroes)
[ Post Reply | Private Reply | To 10 | View Replies]

To: jmstein7
The first amendment allows everyone to tell lies provided there's no "commercial transaction" involved. The NYT, or it's Boston affiliate, or any other newspaper or magazine, provides the "news" free of charge in the "newshole".

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!

15 posted on 05/18/2004 2:15:05 PM PDT by muawiyah
[ Post Reply | Private Reply | To 1 | View Replies]

To: jmstein7

No, and I am sorry to rain on the old parade.


16 posted on 05/18/2004 2:17:44 PM PDT by FlipWilson
[ Post Reply | Private Reply | To 13 | View Replies]

To: jmstein7

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.


17 posted on 05/18/2004 2:31:05 PM PDT by Grampa Dave (What left wing lies of the media, the DNC and foreign enemies will we expose today?)
[ Post Reply | Private Reply | To 2 | View Replies]

To: jmstein7

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.


18 posted on 05/18/2004 2:35:22 PM PDT by atlaw
[ Post Reply | Private Reply | To 14 | View Replies]

To: FlipWilson; Congressman Billybob
I am trying to remember something that happened with CBS many years ago. I believe it had to do with defaming the reputation of a military officer, and they lost.

Perhaps Congressman Billybob will remember this.

19 posted on 05/18/2004 2:36:11 PM PDT by Miss Marple
[ Post Reply | Private Reply | To 16 | View Replies]

To: jmstein7

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.

IANAL.


20 posted on 05/18/2004 2:36:25 PM PDT by rogueleader
[ Post Reply | Private Reply | To 1 | View Replies]

To: FlipWilson

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)

While the first amendment may be a defense, I think the staus is that there shall be no prior rrestraint and that the press is still liable for any wrongdoing after they publish or broadcast...libel and slander are clear examples...maybe the actors could sue the Globe...LOL...then again maybe the actors would be covered under NYTimes v Sullivan as public figures...I do believe the Globe was negligent in not properly sourcing the photos and that the pics were already suspect prior to publication...



21 posted on 05/18/2004 2:38:49 PM PDT by rolling_stone
[ Post Reply | Private Reply | To 7 | View Replies]

To: Miss Marple

http://usinfo.state.gov/products/pubs/press/press08.htm


22 posted on 05/18/2004 2:41:23 PM PDT by rolling_stone
[ Post Reply | Private Reply | To 19 | View Replies]

To: jmstein7

BTTT!!!!!!


23 posted on 05/18/2004 2:41:41 PM PDT by E.G.C.
[ Post Reply | Private Reply | To 6 | View Replies]

To: jmstein7
Shouldn't you be studying for finals?

You're first cause of action -- a shareholders derivative suit -- probably wouldn't survive a motion to dismiss because in most jurisdictions, the plaintiff must be a shareholder at the time the board of directors committed the wrong. Buying the shares now, after the NY Slimes has already lied its way into the toilet wouldn't work. Even if you survived a motion to dismiss you probably wouldn't survive a motion for summary judgment because of the "business judgment rule," which ordinarily will insulate directors from liability for decisions that seemed reasonably prudent at the time even if that decision seems imprudent in retrospect or others would have reached a different decision at the time of the initial decision. You would also have to show that the drop in advertizing revenues was the result of really bad judgment as opposed to other economic factors, the Internet, etc. In other words, if not for the bad judgment of the B of D, the bottom line would have increased or at least stayed the same.

Your second cause of action under the Latham Act would probably not survive a motion to dismiss because you need to show harm, that is, that the plaintiffs would not have purchased the newspaper if they had known the photos were fake. I bet that most people purchased the Boston Globe, not because of the photos, but because they have a subscription or buy the paper out of habit and therefore, they would have paid the $.75 regardless of the photos. You would also have to show that the plaintiffs were, in fact, deceived by the photos, which pretty much eliminates all Freepers from the named plaintiffs or plaintiff class because we don't read the NY Slimes or the Boston Globe for truth or accuracy in the first place. Third, the NY Slimes/Boston Globe would have an absolute defense if it was simply reporting what others had reported as being authentic photos, as opposed to being the source of the fake photos.

24 posted on 05/18/2004 2:48:23 PM PDT by Labyrinthos
[ Post Reply | Private Reply | To 1 | View Replies]

To: Miss Marple
I believe it had to do with defaming the reputation of a military officer, and they lost.

Westmoreland v. CBS

25 posted on 05/18/2004 2:52:25 PM PDT by Petronski (They could choose between shame and war: Some chose shame, but got war anyway.)
[ Post Reply | Private Reply | To 19 | View Replies]

To: Labyrinthos

I finished finals last week.


26 posted on 05/18/2004 3:02:17 PM PDT by jmstein7 (Real Men Don't Need Chunks of Government Metal on Their Chests to be Heroes)
[ Post Reply | Private Reply | To 24 | View Replies]

To: Miss Marple
Your memory is correct. The Commander of American forces in Vietnam sued Time magazine, and succeeded. (It is VERY difficult to win such a case, however, because of the Sp. Ct. case of NY Times v/ Sullivan.)

John / Billybob

27 posted on 05/18/2004 3:05:17 PM PDT by Congressman Billybob (www.ArmorforCongress.com Visit. Join. Help. Please.)
[ Post Reply | Private Reply | To 19 | View Replies]

To: jmstein7

Then you need a job. Where in NY are you?


28 posted on 05/18/2004 3:06:06 PM PDT by Labyrinthos
[ Post Reply | Private Reply | To 26 | View Replies]

To: atlaw

By that reasoning, almost every lawsuit filed by the ACLU is "frivolous."


29 posted on 05/18/2004 3:06:21 PM PDT by jmstein7 (Real Men Don't Need Chunks of Government Metal on Their Chests to be Heroes)
[ Post Reply | Private Reply | To 18 | View Replies]

To: jmstein7

You really are hitting the law books, eh? Unfortunately, the Globe printed a retraction for the prisoner photos. Its wording may not satisfy us, but it would satisfy the courts. You'll never pin liability on a newspaper when it prints any kind of retraction, that's just how the world works. Nice tries on your part, though.


30 posted on 05/18/2004 3:11:27 PM PDT by KellyAdmirer
[ Post Reply | Private Reply | To 1 | View Replies]

To: jmstein7

good luck


31 posted on 05/18/2004 4:26:04 PM PDT by satchmodog9 (it's coming and if you don't get off the tracks it will run you down)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Labyrinthos

You are giving out law jobs? J and I are all ears!


32 posted on 05/18/2004 5:07:17 PM PDT by Mich0127 (Massachusetts: the land of the pathetic..namely Kerry and Kennedy!)
[ Post Reply | Private Reply | To 28 | View Replies]

To: jmstein7

Everything comes back to TMs!

How bout libel?


33 posted on 05/18/2004 5:07:54 PM PDT by Mich0127 (Massachusetts: the land of the pathetic..namely Kerry and Kennedy!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: jmstein7

btt


34 posted on 05/18/2004 7:27:42 PM PDT by GailA (Kerry I'm for the death penalty for terrorist, but I'll declare a moratorium on the death penalty)
[ Post Reply | Private Reply | To 6 | View Replies]

To: marty60
"I firmly believe in the first amendment, but, that does not give them the constitution right to lie in their stories. "

Maybe Congress should start regulating the "interstate commerce" of lies.

Most of the federal gun control laws are based on "interstate commerce."

35 posted on 05/18/2004 7:58:04 PM PDT by gatex
[ Post Reply | Private Reply | To 11 | View Replies]

To: Mich0127

We already hired for the summer. Sorry.


36 posted on 05/18/2004 9:28:21 PM PDT by Labyrinthos
[ Post Reply | Private Reply | To 32 | View Replies]

To: gatex

I have recently been having thoughts that the freedom of the press to dissemenate provably false statements needs to be regulated. The existing libel/slander law is clearly inadequate for the current environment.

As a recovering libertarian, I find these thoughts exceptionally disturbing, but they persist.

In a world where "Congress shall make no law" doesn't mean what it plainly says, how can normal men (and, women, too) of good will come to any agreement on what, oh, for instance, "is" is?

More beer, then sleep, I guess . . .


37 posted on 05/18/2004 9:37:38 PM PDT by filbert (Live Free or Die. . .)
[ Post Reply | Private Reply | To 35 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson