University of New Hampshire

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School of Law

UNH Law Offers Trademark Perspective to U.S. Supreme Court in ‘Stolen Valor’ Case

Several faculty members at the University of New Hampshire School of Law, with help from a third-year student, have offered a new, IP-related perspective to the United States Supreme Court on the much-discussed ‘Stolen Valor Case.’

Their amicus brief, submitted to the high court by UNH Law’s IP Amicus Brief Clinic, offers the court a way to view the case more narrowly as a trademark issue, rather than the more difficult task of deciding whether false statements of fact are protected by the U.S. Constitution. It was recently touted by the National Law Journal as “Brief of the Week: A Way to Avoid a First Amendment Fight.”

The case, United States v. Alvarez, centers on Xavier Alvarez, who in 2007 was an elected member of a Los Angeles-area water board. At a public meeting, he falsely claimed to have received the Congressional Medal of Honor. He was convicted of a federal crime under the 2006 Stolen Valor Act, which prohibits falsely claiming “to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.”

Alvarez appealed the conviction, claiming the law violated First Amendment protections of free speech. In a divided opinion, the U.S. Court of Appeals for the 9th Circuit ruled in Alvarez’s favor and struck down the statute as unconstitutional.

The case, and the issues it raised, was featured widely in the media. It headed to the U.S. Supreme Court, where arguments were heard on Feb. 22.

The faculty involved in the amicus brief, Professors Susan Richey, John Greabe, and Keith Harrison, wondered last fall whether there wasn’t a different perspective to consider: Does the case involve trademark law?

Professor Richey, a nationally recognized trademark expert, researched the issue and found that the Congressional Medal of Honor Society is a Congressionally-chartered corporation.  The fact that the corporation was chartered for recipients of the medal makes it a collective organization, Richey says, which makes the phrase "Congressional Medal of Honor" a collective membership mark.

“It’s a valid trademark, although it’s different from all other types of trademarks in that it doesn't have to do with goods or services – it’s about signifying membership in a group, such as a fraternal organization or a cooperative,” Richey says.

"We recognized that the parties had not raised the trademark issue," she says.  "The parties had teed up the issues either to protect all speech, even Alvarez's lies, or to protect only speech that matters, like political or religious speech, and not lies."

In framing the case as a trademark issue, the court could sidestep the issue of whether false statement of fact is constitutional and instead see Alvarez’s actions as a false statement of fact about a collective mark, which would allow a ruling on much narrower grounds, says Professor John Greabe, an expert in constitutional law and appellate practice and procedure.

“Our brief points out that, arguably, there is another decisional path that is a little less stark and ramified than the way that the issue has been framed in the principal briefs before the Supreme Court,” Professor Greabe says. “Under this narrower approach, it would be constitutional to apply the Stolen Valor Act to Alvarez without making new law.”

The intent was not to weigh in on one side or the other, Greabe says, but simply to call the approach to the Court’s attention.

“When the Court is going to decide a case with potential ramifications for areas of law that are not discussed in the principal briefs, it is helpful to draw those implications to the Court’s attention. That is what we’re really doing here,” he added. “We are making sure that the Court is aware of this alternative way of looking at this particular problem.”

UNH Law’s inventive approach has been noticed far and wide. Professor Keith Harrison, an expert on military criminal law and a member of the U.S. Code Committee on Military Justice, was asked to speak about the brief to the United States Court of Appeals for the Armed Forces at its recent annual Judicial Conference and Continuing Legal Education Program. Later this week, Professor Greabe will speak to the Federal Bar Association in Puerto Rico about the case and UNH Law's trademark perspective.

Third-year student Heath Misley assisted Richey, Greabe, and Harrison with researching the brief.

The brief was filed with the help of the University of New Hampshire School of Law Amicus Brief Clinic. The Clinic is directed by Professor J. Jeffrey Hawley with Professor Ann M. McCrackin as a faculty advisor. Student members of the clinic make significant contributions to the preparation of the briefs that are filed. The clinic has filed several other significant briefs in the past few years, both in the Court of Appeals for the Federal Circuit and the Supreme Court.