Another Reason to Hate Politico: Frivolous Threats of Litigation

As a set of norms for separating proper actions from the improper, American law is pretty good. We tend to get “justice” right, and when we don’t, we sure try. As an actual mechanism for securing justice, rather than merely pondering it, though, the American legal system leaves much to be desired.

The fatal flaw, obvious to anyone with experience on any side of a legal dispute, is the high price of securing justice. Today’s legal system comes with crushing transaction costs, such that even a modest contract dispute can bankrupt, or seriously damage, the assets of an individual, to the point that any victory is essentially Pyrrhic. Yes, you won — but $1 million and three years later. Congratulations?

I see this as a problem to be solved, and a reminder of the true gravity and terrifying power of my soon-to-be profession (“With great power…”). For the unscrupulous among us, though, the prohibitive price of justice is a tool to be exploited, to secure through tenacity, wealth, and steady attrition what one could not gain in a fair hearing. It’s those people who make the rest of us look bad. And earlier this week, Politico joined their ranks.

Perhaps you’ve heard of “The College Politico” — a moderate-to-conservative blog, run by someone who is, judging from Twitter, a smart & genuinely nice guy, the kind who won’t hold a policy disagreement against you. You’ve probably also heard the word “politico” used before — the term has, after all, been around for about 400 years. Despite the word’s commonality and ancient provenance, Politico somewhere got the idea that it could become the sole arbiter of the term, and punish all who use it without attribution — starting with our friend, “The College Politico.”

Politico would stand little chance of prevailing in an actual lawsuit. Trademark protection is generally keyed to the distinctiveness, and thus creative quality, of the trademark itself, such that “fanciful” marks, bearing no relation to a good or service being sold (“Nintendo”) are well-protected; marks “suggestive” of the business are less protected (“Hi Fi Buys”); and purely “descriptive” terms are presumptively unregisterable (a theoretical “Tasty Mexican Food, Inc.”). “Politico,” as a term for a website analyzing politics, is suggestive at most, which entitles the name to some protection. But the Capitol News Company’s theory — that it can leverage a middling mark to withdraw an ancient word from the English language, wholesale — is one that any court would strain to avoid. Politico can no more halt usage of the word “politico” than they could be sued by the trillions of other organizations that already incorporated “Capitol News” in their business name.

Politico, then, is setting a new gold standard for abusive threats of litigation, even as they continue to set new lows for journalistic integrit, too. I urge anyone out there with a WestLaw/Lexis account to contribute time to help research for the defense of “The College Politico,” and otherwise stand against Politico‘s legal department. I know I will.