Free Speech or Infringement?

Charles Smith v. Wal-Mart Stores, Inc.

U.S. District Court for the Northern District of Georgia, Atlanta Division
March 20, 2008

Judge: Timothy C. Batten, Jr., U.S. District Judge

ISSUE: Plaintiff Charles Smith, a satirist, sought summary judgment against defendant Wal-Mart, who accused Smith of trademark infringement and dilution of Wal-Mart’s brand. The issue in question involves bitingly satirical (noncommercial) graphic and Internet presentations of “Walocaust,” “Wal-Qaeda.” “Freedom Hater Mart,” and “Bentonville Bullies Always.” The retailer also sought summary judgment through a cross-motion.

SURVEY EXPERTS: Dr. Jacob Jacoby was retained by the defendant to conduct two surveys: (1) a mall intercept study and (2) an Internet survey.

RESULTS: Dr. Jacoby reported that his two surveys reflected high levels of consumer confusion and dilution by tarnishment.

REBUTTAL ARGUMENTS: Experts retained by the plaintiff were: Dr. Richard Teach, an emeritus marketing professor and former dean of the Georgia Tech School of Business and Dr. Alan Jay Rosenblatt, a professional in the area of Internet advocacy. Dr. Teach argued that Dr. Jacoby did not have the requisite Internet experience to conduct the Web-based point-of-sale portion of this particular study and that several aspects of Jacoby’s methodology affecting both portions of the study were faulty; thus “too deeply flawed to be considered.” Dr. Rosenblatt pointed out some Internet-related deficiencies in Jacoby’s methodology.

RESOLUTION: Court grated Smith’s motion for summary judgment and denied Wal-Mart’s cross motion. Smith’s parodic work was considered non-commercial. Plaintiff’s Daubert motion to exclude Dr. Jacoby’s research and report was denied. Court also denied defendant’s motions to exclude Dr. Teach and Dr. Goldblatt.

SUBJECTIVE OPINION: Wal-Mart was represented by three attorneys from Quinn, Emanuel, Oruhart, Oliver & Hedges LLP, New York, and two attorneys from Troutman Sanders, Atlanta. Smith was represented by an attorney from the Southern Center for Human Rights, Atlanta, and an attorney from the Public Citizen Litigation Group, Washington, DC. Despite all of Wal-Mart’s legal firepower and the efforts of one of the nation’s foremost survey experts, the rights of free speech and free expression, in the end prevailed.