Satirical website target of coal industry strong-arm tactics

Mr. Peabody's Coal Train Tries To Run Down Free Speech

Commentary by Corynne McSherry
Electronic Frontier Foundation
MAY 13TH, 2011

Peabody Energy is at it again, trying to stifle critical speech intended to call attention to the company's practices. Last year, Peabody tried to intimidate a website that spoofed the Peabody-sponsored "Consortium for Clean Coal Utilization (CCCU)." This week, Peabody targeted a website [coalcares.org] that focused on concerns about the impact of Peabody's activities on children's health. The site ostensibly had Peabody offer a free inhaler to any family living within 200 miles of a coal plant, stating:

Why Free Inhalers? Because COAL CARES. Coal Cares™ is a brand-new initiative from Peabody Coal, one of America's proud family of coal companies, to reach out to American youngsters with asthma and to help them keep their heads high in the face of those who would treat them with less than full dignity. For kids who have no choice but to use an inhaler, Coal Cares™ lets them inhale with pride.

It's a brilliant bit of identity correction but Peabody, once again, was unable to take a joke. On Wednesday, Peabody's lawyers sent a letter demanding that its name be removed from the website. And that meant that EFF, once again, was forced to explain that this kind of biting, funny political activism is also legally protected free speech. The legal analysis is not hard: the trademark fair use doctrine and the First Amendment both protect the use of Peabody's trademarks as a necessary part of political commentary. Moreover, the site was entirely noncommercial and several courts have held that noncommercial uses are exempt from federal trademark infringement claims (and for you law geeks, they are also statutorily exempt from dilution claims).

(Continued here with numerous links. NOTE: coalcares.org has replaced "Peabody Coal" in the above text to a rotating list of other coal mining operations.)