Commentary

NYSE Attempts To Use Trademark Law To Squelch Photo

Last November, the Web site Talking Points Memo posted a story about an FBI investigation into insider trading that was illustrated with a photo of the New York Stock Exchange.

The NYSE took offense. This week, the organization sent the news site a cease-and-desist letter demanding that it remove the photo on the theory that posting it violated the stock exchange's trademark. In the letter, the NYSE makes the remarkable claim that it has the right to prevent "unauthorized use of its trademarks and reference to the NYSE by others." In other words, not only is the stock exchange claiming the right to remove any photos depicting it, wherever they appear online, but also appears to claim the ability to stop other people from even talking about it.

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Fortunately for Talking Points Memo -- and everyone else who creates content -- a trademark confers no such thing. A trademark owner can prevent the use of its mark in a way that confuses consumers, but readers of the news site obviously aren't likely to be duped into believing that it's now affiliated with the NYSE because it posted a photo of it.

Of course, the NYSE isn't the first organization to attempt to use trademark law to squelch material on the Web. The group joins a roster that includes Walmart, Goldman Sachs, and the law firm Jones Day.

So far, Talking Points Memo has refused to give in to the NYSE's demands. Whether the stock exchange attempts to pursue the matter in court remains to be seen.

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