Slogans and Trade Dress Infringement

The Cardigans are a very progressive with the way they do business, especially with keeping up with the latest laws and cases that pertain to individual rights and the impact that the laws have on business. They are planning to introduce a new line of clothing called “Scantily Clad” with the slogan, “So light You Won’t Know You are Wearing a Thing!” The local television station WBLAH told Candie Cardigan that it would not air such a commercial due to content. Furthermore, that it was not appropriate for children to view it. The Cardigans believe that this is old law and believe that they are protected under the First Amendment’s Freedom of Speech.

Your supervising attorney, and one of CARDWARE’s Corporate Counsel, Rice E. Roni would like for you to analyze case law in your state as well as the First Amendment Freedom of Speech and determine if the Cardigans have a right to have their commercial aired or not. Be sure to discuss whether or not WBLAH is unreasonably abridging the Cardigans’ rights guaranteed to the individuals under the First Amendment. Your response is to be in the form of a memorandum instructions which are provided below.

Rice E. Roni scribbled a few notes on a sheet of paper to help you with your research.

Look at the case of Action for Children’s Television v. FCC.
Please review the 1978 decision of the Supreme Court in Federal Communications Commission v. Pacifica Foundation – See more at:

First Amendment and Censorship. (n.d.). Retrieved June 10, 2016, from:

http://entertainmentlaw.uslegal.com/censorship/first-amendment-and-censorship/#sthash.AnrMIuEN.dpuf

Please determine if this is good law, or not and whether or not it applies to our situation.

Be sure to analyze our situation from both a positive and a negative viewpoint so we will know what our strengths and weaknesses are when we insist that our commercial be given air time.

Assignment Instructions

You are the paralegal working for CARDWARE’s corporate counsel and have been asked to draft a 2–3-page double-spaced memorandum to Rice E. Roni, Corporate Counsel of CARDWARE Inc.and discuss the following:

Your state law and the First Amendment and whether or not the Cardigans have a right to have their commercial aired or not.

Be sure to discuss whether or not WBLAH is unreasonably abridging the Cardigans’ rights guaranteed to the individuals under the First Amendment.

Be sure to indicate which case gives us the most support of having the commercial aired.

Checklist Before Submitting Your Assignment

Read the question and what is being asked of you twice.

Structure your Assignment in memorandum form.
Example:

Date:

To: Rice E. Roni, Supervising Attorney, CARDWARE Inc.

From: [Your Name]

Re:

Organize your memorandum with an introduction, body, and conclusion.
Note: Your memorandum length of 2–3 pages is separate from the cover sheet and reference page.

-Keep all font color consistent throughout. If a blue hyperlink appears, remove it by hovering over it and right click. A vertical dropdown menu will appear. Click on Remove Hyperlink.

-Avoid the use of first person.

ANSWER

Slogans and Trade Dress Infringement

Date:

To: Rice E. Roni, Supervising Attorney, CARDWARE Inc.

From: [Your Name]

Re: Cardware Inc v WBLAH

Introduction

Censorship laws are meant to protect the public from content that is indecent and socially unacceptable. As such, the rules have a vital role in maintaining acceptable social behavior. However, some individuals think that censorship imposes unreasonable restrictions on freedom of expression, therefore, violating the first amendment of the United States Constitution. This memorandum discusses whether or not the local television station WBLAH infringed Cardigan’s freedom of expression by refusing to air their commercial.

WBLAH refused to air “Scantily Clad,” a product of Cardigan Company with the slogan “So light You Won’t Know You are Wearing a Thing!” on grounds of indecency. According to WBLAH, the slogan comprises obscene, indecent, and unacceptable words. Although censorship plays a vital role in maintaining social standards, it should not unreasonably abridge the rights that the First Amendment guarantees (First Amendment and Censorship. n.d.). However, the television seemed to be censoring the advertisement, which is a direct violation of Cardigan’s freedom of expression.

The First Amendment emphasizes respecting individuals’ freedom of expression; however, it recognizes censorship and bans airing of indecent content from 10 p.m. to 6 a.m. The Supreme Court acknowledged that obscene content is not illegal; nevertheless, the televisions should limit the airing time to protect children from exposure (First Amendment and Censorship. n.d.). If WBLAH deemed the commercial indecent, they could have considered airing it at the restricted time between 10 p.m. and 6 a.m.; rather than their entire refusal to air it. Therefore, the television had unreasonably abridged Cardigan’s right of expression.

In 1978, the Supreme Court in the Federal Communications Commission v Pacifica Foundation case ruled that George Carlin’s monologue was indecent. The twelve-minute afternoon satiric monologue on a New York broadcast was titled “Filthy Words,” comprised of colloquial words at a time when children were a possible audience (First Amendment and Censorship. n.d.). According to FCC, some words in the monologue, illustrated sexual activities offensively. Although the court identified seven specific words as indecent, it failed to define indecency clearly.

The case of Action for Children Television’s v FCC brought about the issue of time regulation for airing content unfit to be viewed by children. The FCC is entitled to consistently regulate the broadcast industry with the public interest (Wilhelm Jr., 1992). A U.S court of appeal found the FCC’s definition of indecency as not overboard and found the restraint of airing such content from midnight to 6 a.m. as unreasonable and a hindrance to the first amendment. As a result, the court recognized that it has a role in striking a balance between protecting children from offensive broadcasting and respecting freedom of expression as stated in the first amendment. The court reviewed the airing of indecent content from midnight to 6 a.m. to between 10 p.m. and 6 a.m.

Conclusion

Refusal of WBLAH to air “Scantily Clad” interfered with Cardigan’s right of expression as per the First Amendment. The Action for Children Television v FCC case introduced the aspect of the timing of commercials. If WBLAH viewed “Scantily Clad” as an indecent advertisement, they could have considered airing it at the restricted time between 10 p.m. and 6 a.m. rather than the complete refusal to air. Since WBLAH refused to air Cardigan’s advertisement based on indecency in their slogan, the case Action for Children Television v FCC gives Cardigan the most support for having their commercial aired. The television should have considered airing the advertisement in the restricted time between 10 p.m. and 6 a.m.

References

First Amendment and Censorship. (n.d.). Retrieved June 10, 2016, from:

http://entertainmentlaw.uslegal.com/censorship/first-amendment-and-censorship/#sthash.AnrMIuEN.dpuf

Wilhelm Jr., W. B. (1993). In the Interest of Children: Action for Children’s Television v. FCC    Improperly Delineating the Constitutional Limits of Broadcast Indecency         Regulation. Catholic University Law Review, 42(1).

https://scholarship.law.edu/cgi/viewcontent.cgi?article=1718&context=lawreview