Even Stupid Decisions Are Bigger in Texas
If you go to the website www.texasworkerscomplaw.com today, you will be told that it is currently undergoing maintenance, and is not available.
That is not entirely a true statement. In fact, it is likely a complete falsehood, albeit an understandable one given the circumstances. The reality is that www.texasworkerscomplaw.com, a blog written by Texas attorney John Gibson, has been shut down by a legal threat from the Texas Department of Insurance. The reason? The state is citing existing law that it contends prevents anyone from using the term "Texas" and "Workers' Comp" or "Workers' Compensation" in connection with a website or blog, and has threatened Gibson with a fine of $5,000 a day.
No wonder the site is undergoing maintenance. Even for an attorney that eventually adds up to real money.
Section 419.002 of Texas Labor Code says the use of the terms is forbidden in connection with "any impersonation, advertisement, solicitation, business name, business activity, document, product or service." It also apparently prohibits the use of Texas map images or official symbols such as the state flag in such endeavors. Gibson filed suit against the state claiming that his rights to free speech and due process are being violated. He claims that the terms are public domain, and they cannot legally prevent him from using them. He lost the initial round, but a federal appeals court this week returned validity to his claim.
I'll give you about two seconds to figure out what side I am coming down on.
If you are not sure, visit this page on our site, and then decide where I am at.
The statute in question is designed to prevent people from using trickery or deceit to convince unsuspecting people that their business is an official part of state government. I understand the intent of the law, but find the application in this case a blatant overreach. In the example of our own site provided above, the Texas section of WorkersCompensation.com, we make no assertion that we are an official representative of the Lone Star State, but nonetheless use those terms (Texas Workers' Compensation) because that entire section is about Texas workers' compensation (duh). We've done that for 13 years. We used to show the state flag, but ceased doing so in a site redesign several years ago. Nothing there is intended to induce or persuade people into believing we are the official DOI site for Texas. I doubt www.texasworkerscomplaw.com did either.
I would also point out that one way you can tell we are not an official site; the complete absence of the word "ya'll" (pronounced "yawl") anywhere in that section.
It seems that government continues to struggle with the application and interpretation of technology based entities, including the domain names associated with them. Our own experience with the US Patent and Trademark office, when we started operations in 1999, was a lengthier and more cumbersome process because protection of our service mark and the extent of protection afforded the phrase WorkersCompensation.com was the subject of much review. The logo and its elements are protected, while the use of “workers’ compensation” is not. It took multiple reviews to get there, and to our surprise the first pass did initially grant protection to the phrase. Upon further review, and before final protection was granted, the USPTO reversed that element, and ultimately got it right, damnit.
I suppose my utter disappointment lies with the fact that I like Texas as much as I do. I like the people. I LOVE the food. Texas is a land of rugged independence and reliability; traits they shared with Australia until that country recently crumbled into a Sissy State. Now Texas is a lone example of individualism, self-reliability and personal responsibility. To see a Texas government agency make an Orwellian attempt to crush an individual’s right to speak over the use of public domain terms in a title is disturbing.
I believe the very intent of Section 419.002 is being misinterpreted and misapplied by the Texas Department of Insurance. A simple blog, that is presumably free for all to read, should not be construed as a threat simply because common elements are used in its name, even if it is written by an attorney. It would appear the 5th Circuit court agrees. Writing for the court, Judge Edith Brown Clement said, “A domain name, which in itself could qualify as ordinary communicative speech, might qualify as commercial speech if the website itself is used almost exclusively for commercial purposes. Even if the domain name amounts to commercial speech, [the plaintiff] has nevertheless stated a claim under the First Amendment. Therefore, we reverse and remand the case for further proceedings on that basis."
The court found that “Texas has made no showing that its own talents and energy contributed to the creation of any goodwill in the name 'texasworkerscomplaw.com’. Instead the regulation at issue is forward-thinking; intended to prohibit confusion for individuals seeking information from the government agency." This is significant because the judges found that trademark infringement cases must depend on “inherently deceptive speech” that infringes on the goodwill of the original mark. As indicated, they found no reason to believe that had happened in this case.
I certainly hope for the sake of us all that Mr. Gibson prevails in this case. It could have, and should have, been a much simpler case. The DOI could have requested a small disclaimer be placed on the blog that establishes no official connection to the Texas workers’ comp system. Or, they could have worried about more important things altogether. We all have heard that everything is bigger in Texas. This whole affair goes to show that can apply to many things, including stupid decisions.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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