EFF Responds To Gas Companies Trying To Use Trademark To Silence Parody

I won’t pretend like I’m not a huge fan of the Electronic Frontier Foundation. The EFF has done great work representing clients on matters of free speech and technology innovation. Whether it’s defending anonymous speech from being unmasked or fighting back against the use of intellectual property laws merely to hide content from daylight, this is a group that certainly doesn’t back down from a fight.

But those fights continue. The most recent of them is a cease and desist letter sent from several gas companies to an advocacy group called Modest Proposals over the latter’s use of those companies’ trademarked logos on its site. The problem, though, is that Modest Proposals is a non-profit and the site it constructed is pure parody.

Modest Proposals is an activist collective that uses parody and culture jamming to advance environmental justice and other social causes. As part of a campaign shining a spotlight on the environmental damage and human toll caused by the liquefied natural gas (LNG) industry, Modest Proposals invented a company called Repaer. The fake company’s website offers energy companies the opportunity to purchase “life offsets” that balance the human deaths their activities cause by extending the lives of individuals deemed economically valuable. The website also advertises a “Plasma Pals” program that encourages parents to donate their child’s plasma to wealthy recipients. Scroll down on the homepage a bit, and you’ll see the logos for three (real) LNG companies—Repaer’s “Featured Partners.” 

Believe it or not, the companies didn’t like this. (Shocking!) Two of them—TotalEnergies and Equinor—sent our client stern emails threatening legal action if their names and logos weren’t removed from the website. TotalEnergies also sent a demand to the website’s hosting service, Netlify, that got repaer.earth taken offline. That was our cue to get involved.

This is familiar ground for the EFF. It’s response to the two gas companies was in letter form, which was also posted to the EFF website. It is a point by point refutation of the claim that any of this is trademark infringement. I will post the entire letter below for your enjoyment, but here are some key points in the response letter.

Your trademark claim fails at the threshold because the Lanham Act regulates only commercial speech.2 Modest Proposals’ parody website is not selling any good or service; it is pure social commentary. It therefore falls beyond the Lanham Act’s reach.

Even if the Lanham Act did apply here, use of a trademark is not infringing unless it is
likely to confuse consumers. The content of the website is facially and intentionally absurd: It purports to offer companies in the energy industry the opportunity to purchase “life offsets” that balance the human deaths their activities cause by extending the lives of individuals deemed economically valuable. The website also advertises a fake “Plasma Pals” program that encourages parents to donate their child’s plasma to wealthy recipients. We find it extremely unlikely that any significant number of consumers would mistake the fake website for anything other than the spoof that it is or believe that TotalEnergies, one of the targets of the parody, approved it. Indeed, courts readily recognize that successful parodies carry little risk of consumer confusion.3 Without a likelihood of consumer confusion, there is no infringement.

The letter goes on to note the First Amendment protections afforded to expressive works of parody.

Now, these companies have large legal war lychests to utilize should they actually want to fight this out in court, but they certainly shouldn’t. This isn’t one of those marginal cases where there is a real question of the law.

Instead, it is an instance the EFF right calls out as an attempt to utilize trademark law to silence expressive speech these companies simply don’t like.