Wednesday, July 05, 2017

NFL is advising ICE to seize obvious parodies, my FOIA suit reveals

When last I reported on this, the judge had ordered ICE to unredact materials showing company advice to ICE to seize parody merchandise, since such merchandise wasn't counterfeit and there could be no legitimate law enforcement interest in keeping this advice from the public.  Indeed, ICE's subsequent production showed that, like the NHL, the NFL has instructed ICE that obvious parodies/nonconfusing uses are counterfeit:
From NFL manual: Dallas Sucks shirt is counterfeit because "NFL licensed merchandise will never favor one Club over another or make derogatory use of another Club's marks"

Another supposedly counterfeit shirt showing Minnesota player urinating on Green Bay Packers logo inside outline of Wisconsin
So, what do we know?  (1) Despite ICE's initial claims to me via its spokesperson and a lawyer, ICE relies only on industry guides to identify counterfeits, not on any independent sources.  (2) Those industry guides identify what they don't like, not what is within the scope of counterfeit goods.  (3) Most of what ICE seizes is truly counterfeit, but when it seizes parody merchandise, it implicates First Amendment interests in free speech.

What next?  (1) ICE should improve its guidance to agents, though I'm not sure how that is best to be accomplished.  (2) Industry guides should limit themselves to true counterfeits.  I will note that thus far it doesn't seem that clothing brands, which also provided guides to ICE, overreached in the same way, so it can be done.  Calling the NFL/NHL!


Michael Risch said...

Does the data reveal number and types of seizures? That is, they rely on the NFL, but do they also rely on internal legal principles in practice?

Rebecca Tushnet said...

Your first question: I was somewhat surprised at the lack of overall record-keeping. The records are a lot of one-line entries that can cover dozens or hundreds of items, with minimal descriptions. There are also no records of what they don't seize.

Your second question: There's no reason to think that they rely on anything other than the "official" guides. The agents aren't lawyers and don't appear to receive any other training; at least, they deny the existence of any other materials. The problem is that there are a lot of counterfeits; a rule "seize everything with an NFL team name on it" would be right 95% of the time. But I think it's still a problem that "X sucks" is being labeled counterfeit.

Michael Risch said...

Interesting. Thanks for this work. Better recordkeeping would be nice, as would some recognition that not everything is a counterfeit, even if most of it is. I think that takedown notices fall into this same boat.