Koch Is Not It

-Originally blogged by Knute Rife on The Business Law Spot

May 18, 2011– I'm brewing up a series of entries over the next few days, but I'll start with this:

Late last year, a group of merry pranksters issued a fake press release satirizing Koch Industries' environmental policies, using Koch's trademarks and name to make the release look like it was actually from Koch. FYI, Koch Industries is the Koch Bros., the billionaires who are funding the Tea Party and about every anti-Middle-Class piece of legislation in the country. Nobody was actually fooled into thinking the press release came from Koch, but Koch did have to spend some staff time responding to inquiries. Well, things like this aren't supposed to happen to People Who Matter, like the Koch Bros., so they decided to get to the bottom of it. They sued Bluehost and Fast Domain, the internet service providers (ISPs) the pranksters used for disseminating the release, here in Utah to get the names of the pranksters (Bluehost is based here.), alleging the pranksters had committed IP fraud and infringement.

Background: With any type of intellectual property, there are certain ways you can use it without paying for it. This is called "fair use". Go beyond fair use without paying, and you're infringing. One group of fair uses are informative uses. A reporter might use a company logo in a news story, a reviewer might quote from a book, and a researcher might cite to an earlier work, and none would be infringing the IP they are using. Another group of fair uses are political uses. For example, company names and logos are frequently used in strikes and boycotts, but the users are engaged in political speech and are Constitutionally protected.

An example, to give you an idea of how these things normally work. A couple of years ago, the outdoor clothing manufacturer North Face learned that it was being lampooned by a couple of people selling clothing under the name South Butt. South Butt was not only parodying North Face's name but also its logo and marketing slogan. And South Butt was making money selling recreational clothing, in direct competition with North Face. North Face sued, received a lot of bad publicity for picking on the little guy, and ultimately settled the case. The terms are secret, but South Butt's operations have apparently been limited in some way to minimize their impact on North Face. Commercial use, infringement, resolution. That's the norm.


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