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The Black Panther Party has traded its gun-toting, haute couture-cum revolutionary past for a present focused on preserving its legacy. In this respect, it has more in common with the Daughters of the American Revolution than the Symbionese Liberation Army. So perhaps it shouldn’t have been surprising to hear that members of the original Black Panther Party and the Huey P. Newton Foundation were threatening the New Black Panther Party for Self Defense with a trademark suit. Personally, however, my jaw could not have hit the floor any faster if Timothy Leary had come back from the dead to claim legal rights in “turn on, tune in, drop out.” Known equally for its militancy and its social activism, the Black Panther Party years ago issued a “Ten-Point Plan” that demanded that the government guarantee a basic minimum income, provide health care and encourage cooperative ownership of housing and land. Given how much the party wanted to promote sharing, its reluctance to share its name is somewhat surprising. On further examination, however, the original Black Panthers appear to be the victims of an aggressive doppelganger. The New Black Panther Party for Self Defense is certainly appropriating the words and images associated with the original party. The New Black Panthers, for example, promote a “Ten-Point Platform/Program” that, generously speaking, uses the original plan as a “point of departure.” The new party displayed its Ten Points on its Web site (which has since been taken offline) under a renowned picture of Bobby Seale and Huey Newton. The new party also uses the original party’s logo of a stalking panther. All of this might be unobjectionable if the New Black Panthers were like new Tide — the same product in a slightly newer form. But they are not. The New Black Panthers came to national prominence under the leadership of Khalid Abdul Muhammad, a former spokesman for the Nation of Islam who was notorious for his extreme anti-white and anti-Semitic opinions. The New Black Panthers are currently led by Malik Zulu Shabazz, who has carried on this tradition by making offensive statements like “the European Jews have America under control.” The New Black Panthers have not engaged in the kind of social programs — free breakfasts, sickle cell anemia testing and the like — that endeared the original Black Panthers to their constituents and now form the core of the legacy promoted by the Huey P. Newton Foundation. The New Black Panther Party has ripped off the original Black Panthers’ name in such a ham-handed manner and has used that name in service of a message so divergent from that of the original Black Panther Party that it has already been enjoined by a Texas state court. The court order, issued in September 1997, forbids the new party from “referring to themselves … by any name containing the words Panther, Black Panthers or Black Panther Party.” The Texas state court action arose after the New Black Panthers, then led by Aaron Michaels, engaged in violent demonstrations at Dallas school district meetings. The Black Panther Party Inc. brought suit to protect its name. The Black Panther Party Inc. is a Texas-based entity run, with the blessing of the original Black Panther Party, by Fahim Minka, a veteran party member. While the injunction would seem to have settled the trademark dispute, the New Black Panthers have simply ignored the order, leaving the original Black Panthers threatening to bring suit in federal court. Andrew Gold, a partner at Bogatin, Corman & Gold in Oakland, California, who represents the Huey P. Newton Foundation, sent a cease and desist letter to the New Black Panther Party in August. However, he has yet to file a complaint while waiting to see if the New Black Panthers come up with a new name. Leaving aside ideology, personality and tactics, the looming trademark dispute is hardly clear-cut. As Shabazz says, “Our position is that the Panther [name] exclusively belongs to no one. It belongs to the people.” While this argument would be a dead-bang loser if brought on behalf of, say, a pornographer using Beanie Babies in the title of a new release, Shabazz has a point. Quite simply, the original Black Panther Party was a political party. It had chairmen. It ran candidates. Its designators and symbols — the raised clenched fist, stalking panther, Black Power slogan, black berets and the name itself — are political speech. The original party’s trademarks are not merely trade names, and courts must tread carefully before enjoining their use in a political context. The original Black Panthers’ assertion that they are entitled to prevent use of their name in the service of an incompatible and offensive political message is emphatically insufficient. That is tantamount to saying that Democrats cannot call themselves Democrats if they do not support the platform on which George Wallace ran or that the Republican platform must be frozen on the date that Teddy Roosevelt proposed progressive taxation. The political views articulated by party members and the planks in a party’s platform change. The fact that Lincoln’s political party has different concerns now than it did in 1864 does not divest the Republicans of the right to identify themselves as such. The original Black Panthers’ claim amounts to an assertion that they alone, as the original leaders of the party, are the keepers of the eternal flame. Courts should not accept this argument. In an open and democratic society, history is not the exclusive province of those who made it. Assigning and enforcing exclusive rights in political speech — whether from our past or otherwise — is profoundly undemocratic and nowhere sanctioned in our law. In fact, the most powerful argument for enjoining the New Black Panthers’ use of the original Black Panthers’ trademarks is the concern, strongly suggested by the facts, that the New Black Panthers are intentionally deceiving their constituents into falsely believing that an association or relationship with the original Black Panthers exists. Deception in politics, like deception in business, may be — and should be — uncovered. And circumstantial evidence of deception may suffice to justify an injunction on business matters. However, we must exercise far greater care when the consequences of a finding of infringement involve prohibiting political speech. Proving that the New Black Panthers are purposefully deceiving the public, as opposed to engaging in protected political speech, will be a difficult task. The original Black Panthers should shoulder this task with the same gusto they brought to feeding and caring for the poor in Oakland and doing gun battle with its police force. Or perhaps they should invest that time, energy and money in political speech of their own. Maya Alexandri is an intellectual property associate at Wilmer, Cutler & Pickering in Washington, D.C.

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