Philip Morris attacks Marlboro parody, runs into “Web bully’s worst enemy”

Mid-June appears to be "defend parody T-shirt week" for the lawyers at Public Citizen.

Just days after convincing the Ready for Hillary political group to drop its threats against a seller of T-shirts mocking its cause, the lawyer who was recently profiled as the "Web bully's worst enemy," Paul Alan Levy, has found a new t-shirt fight to resolve.

Skylar Shatz, who owns the independent T-shirt shop SkygraphX, received a "cease and desist" letter from Philip Morris' attorneys earlier this month. Philip Morris claimed one of his shirts, which turns a Marlboro box into one labeled "Death," infringed and diluted its trademark. It turns out Shatz is one of hundreds of parodists who have tweaked Philip Morris brands, only to find themselves on the receiving end of a lawyer's threat.

Shatz's shop was based in a West Nyack, New York, shopping mall for the last two years, before he closed up shop in December to go "on tour" and continued to sell online.

In his response letter [PDF], Levy says that if Philip Morris wants to proceed with litigation against Shatz, he's not only ready to defend the case—he'll look into the hundreds of other targets of Philip Morris bullying letters.

Levy points out that a T-shirt replacing the Marlboro name with "Death," and the type of filter with the phrase "Population Filter," is plainly a very pointed parody. And the fact that it's sold online doesn't make it "commercial" speech. Levy writes:

Your trademark claims are nonsense. Shatz' use is plainly parody. He uses the design to call attention to the serious consequences of smoking your client's Marlboro products—it kills people, and thus "filters" the population... Your client's target customers may be addicted but they aren't stupid.

The phone call between Levy and the opposing attorney, Roberta Horton of Arnold & Porter, sounds like a remarkable one. Horton told Levy that in "hundreds of other cases," sellers of similar designs had caved in to Philip Morris' demands—and then hung up on him. (She called back later.)

"I am very disappointed to learn that you have been so successful at bullying other parodists," writes Levy. "Skylar Shatz is not going to be one of your victims.... If you believe your client's interests require you to file suit over this protected speech, we will be ready to defend the action."