Georgia trademark law challenged

A new law that takes effect today in Georgia sounds like a good idea: protect registered trademarks on the Net. But a group of organizations, including the American Civil Liberties Union, Web page publishers, and other businesses, say the law is "ignorant" and "unclear"--and they're vowing to strike it down.

"Within a week a letter will be sent to the attorney general requesting an official opinion to narrowly construe this law," said Representative Mitchell Kaye (R-Marietta), who opposes the measure and retained Atlanta-based law firm Bondurant, Mixson, & Elmore to draft the letter and prepare for litigation. "In the absence of that, a federal court case will proceed."

As CNET reported in April, the Georgia Computer Systems Protection Act makes it illegal to falsely identify yourself or place a registered trademark or logo on a home page without permission. The bill also makes it illegal to claim someone else's identity when sending email messages. Violators could face up to one year in jail and up to $1,000 in fines.

But with the ACLU and at least one of Georgia's own legislators vocally allied against the bill, the law could turn out to be another legal test case for how to regulate trademark infringement and false advertising on the Internet, much like the Communications Decency Act has become a lightning rod for free speech debate.

"Basically it just states and sets a penalty for anyone who would set up a home page and identify that home page with information that would make it appear that it was the home page of another person or another organization or another company," said the bill's sponsor, Georgia state Representative Don Parsons (R-Marietta).

Parsons said he introduced the bill to make the Net into a safer, or at least more legal, place for businesses and consumers. "This is a pro-consumer and pro-business piece of legislation especially as the Internet becomes more of an avenue for business," said Parsons. "I think the positive thing is that it will give more validity and take some of the skepticism out of conducting business over the Internet."

But Kaye said the bill is more of a product of Parson's ignorance of Net technology than a real problem and that the law's passage will taint Georgia's reputation among high-tech companies. "When you have a bunch of politicians that don't understand technology and are afraid of it, they try and pass a law to solve a problem that doesn't exist and it really sends a very dangerous message to the rest of the world that Georgia doesn't understand and is inhospitable to technology," he said.

Bondurant, Mixson, & Elmore accepted the case not because the law is necessarily bad, but because it's too hard to figure out whether it's good or bad, said Scott McClain, lead attorney on the case. "Part of the reason why it seems so confusing is because it is confusing," McClain said. "It is not clear at all as to what the law prohibits."

Here's where it gets confusing.

The bill states that the law applies to users who send data that "uses any individual name, trade name, registered trademark, logo, legal or official seal...when such permission or authorization has not been obtained."

Parsons says this language means that only logos used to mislead readers are targeted. "As far as I can interpret the bill you can use them [trademarks] as long as you're not using them to actually identify the page as somebody else's page," he said. "I think that's where a lot of the confusion has come from."

For example, according to Parsons an individual would break the law if they set up a Coca-Cola page and made it look like it was an official company page. But anyone is free to use the Coca-Cola logo without explicit permission or link to the company's site as long as it was clear that the page wasn't the official site.

Alas, it's not that easy, McClain says.

"I wish the law was as clear as Don Parsons thinks it is," said McClain. "Say for example I want to publish a parody or a satire of Coca-Cola, and I publish a Web page that criticizes Coca-Cola. It's not clear whether or not I have permission. Don Parsons may say that I never intended to cover that kind of conduct because I'm not pretending to be Coca-Cola, but Coca-Cola may disagree and may try and get some local prosecutor to prosecute me."

Despite the confusion, the law goes into effect today and will be enforced by country prosecutors and city solicitors in Georgia, according to Parsons.

But who they will be allowed to prosecute is still an open question: only home pages created in Georgia, all home pages accessible from Georgia, or only home pages that happen to get a Georgian company mad enough to sue? "We don't know how this will be implemented," McClain said. "You're guess is as good as mine."

Related story:
Georgia OKs "Net Police" law