6th Circuit applies JDI to political speech, but holds that disclaimers avoid confusion

Libertarian National Committee, Inc. v. Saliba, No. 23-1856 (6th Cir. Aug. 28, 2024)

Dissenting members of the Libertarian Party of Michigan maintain that they are the true Michigan affiliate. The Libertarian National Committee sued and the district court enjoined them from using the Libertarian Party mark. In an opinion that follows JDI in insisting that “use as a mark” is the appropriate speech-protective line, the court of appeals mostly affirms, though it vacates the injunction as to fundraising that uses a pop-up disclaimer to inform donors of the substance of the dispute, which the court of appeals finds avoids likely confusion. [This is probably best understood as a normative version of “reasonable consumers wouldn’t be confused.”]

Defendants, even after the dispute began, kept identifying themselves as the Libertarian Party of Michigan in connection with soliciting donations, filing campaign finance paperwork, and promulgating platform positions, endorsements, and commentary critical of the Chadderdon-chaired group. The core holding: “[D]efendants’ use of the LNC’s mark to, among other things, solicit party donations, fill out campaign finance paperwork, advertise events, and espouse political platform positions and commentary falls within the scope of the Lanham Act.” “Services” are broadly defined, and the Lanham Act reaches noncommercial speech at least to the extent of covering uses as a mark. Although prior cases protecting noncommercial/political actors have sometimes reasoned that political positions etc. aren’t “services” within the scope of the Act, they are better understood as in fact standing for the principle that, for example, discussing and critiquing the trademark owner is not a source-identifying use. 

For what it’s worth, this distinction roughly tracks my pre-JDI proposal to focus on whether reasonable citizens can tell who is speaking when it comes to noncommercial speech, although my version notably relies on traditional First Amendment tiers of scrutiny and—perhaps foretelling coming Supreme Court moves—the court here does not. This is going to create further doctrinal crinkles when trademark owners assert that noncommercial uses cause sponsorship/affiliation confusion; one of the merits of tiers of scrutiny, which can concededly be replicated by other methods with which modern courts have less experience, is that they provide a framework for assessing the strength of the relevant interests and the fit between a particular imposition of liability and those interests.

“[I]n the narrow context where a defendant uses the trademark as a source identifier, the Lanham Act does not offend the First Amendment by imposing liability in the political arena.” The court is right to say that the results of previous cases, if not their language/statutory interpretation, are relatively consistent with the line it draws—if you agree that none of the previously protected uses, including domain names like taubmansucks.com, were “source-identifying” if they didn’t sell (competing?) goods. But what this means is that now most of the speech-protective work will be done in the “source-identifying” inquiry. This is easy with people calling themselves the Libertarian Party, and has been relatively easy for courts dealing with individual “articles” (how the court describes both Farah v. Esquire Magazine, 736 F.3d 528 (D.C. Cir. 2013), and the Radiance Foundation “National Association for the Abortion of Colored People” case). But plaintiffs will adapt, and it might not stay easy for lots of representational art.

Thus, without going into factor analysis, the court of appeals found that most of the challenged uses were unauthorized and likely to be confusing. However:

Defendants also used the LNC’s trademark on their website to solicit donations. In connection with the donation tab, defendants displayed one of two pop-up disclaimers notifying the potential donor of the governance dispute, the LNC’s recognition of the Chadderdon-led faction, and that any donations would be going solely to defendants. The disclaimers also included hyperlinks to the Chadderdon-led affiliate’s website. By clearly explaining the identity of the donation recipient, these disclaimers ameliorated the confusion the Lanham Act seeks to prevent. The disclaimers also resemble those we have previously found sufficient to eliminate a likelihood of confusion. Accordingly, defendants’ use of the trademark in connection with their online solicitation of donations, when accompanied by appropriate disclaimers, does not create a sufficient likelihood of confusion as to the recipient of the funds and thus cannot be the predicate for Lanham Act liability.

Query: are defendants therefore entitled to a modification of the injunction to allow them to apply the same disclaimers to other things they do, like running the rest of the website or sending materials to officials?