Stuart Freen is a JD candidate at Osgoode Hall Law School.

The United States Chamber of Commerce (USCOC) recently filed a lawsuit against a group of self-proclaimed prankster activists known as the Yes Men. A few weeks ago the Yes Men staged a fake news conference where they posed as USCOC representatives and announced that they would support a climate change bill (a sharp reversal from the Chamber’s much-criticized position against the bill). The conference was short lived, as a real Chamber executive burst in mid-way through, causing much confusion. Now the Chamber is out for blood: They are bringing claims against the comedy group for trademark and copyright infringement, unfair competition and false advertising, among others.The Yes Men’s shtick is fairly straightforward: First they set up official looking websites at believable URLs, in this case “www.chamber-of-commerce.us”. Then, through these sites they arrange to speak (as the organizations) at big press events where they invariably make some outrageous announcement. The group’s activities have an activist bent; they target organizations with questionable business ethics. Past stunts have included impersonating Exxon executives in Calgary where they unveiled a new fuel made out of human corpses, and posing as a Dow Chemical representative on MSNBC where they announced that they would pay $12B to help the victims of the Bhopal Disaster. The Yes men have published a book and made two movies chronicling their exploits, the latest of which went into theatres just weeks ago and coincided with the USCOC event.

The USCOC complaint charges the Yes Men with cashing in on the Chamber’s trademarks and good name in order to promote their movie. The complaint downplays the activism aspect of the stunt, characterizing the comedians as calculating opportunists trying to make money at their expense.

The case raises an interesting issue: Could the Yes Men’s fake news conference and press releases actually be characterized as parody or free speech? The group has announced that they will be represented by the Electronic Frontier Foundation and intends to argue that they were protected by the First Amendment. Their stunts certainly make a political point; the organizations they are impersonating look all the more evil when they are forced to renege on the Yes Men’s promises. On the other hand, the Yes Men are clearly in business and seem to at least partly be motivated by making a buck.

While the stunts are invariably revealed as hoaxes eventually, part of their impact is that they are reported as real news for a while. The Chamber of Commerce story fooled news organizations including CNBC and Reuters who reported on it as the truth for a few hours, and the earlier incident with Dow Chemical actually caused the company’s stocks to plunge. The stunts aren’t just straightforward fraudulent impersonations (since the whole point is for them to be uncovered and draw attention to questionable ethics), yet they are not harmless by any means. In any event, this will be a case to watch and should set some interesting precedents for this type of activism in the future.

Posted in IP, Trademarks