It's Godzilla v American free speech all over again, writes Ros Davidson. Or corporate trademarks versus bad-taste T-shirts, albeit a product line with less than $17 (£9) in sales in five months by the time the lawsuit was filed.
The little guy in the battle is Charles Smith, a father of three and small businessman - of course - who likes to rant against Wal-Mart.
Subtle he is not. On hiswebsite, Smith, 48, likens the impact of the retail behemoth to the Holocaust and parodies the store's logo and sales pitches on T-shirts and mugs: "I {heart} WAL*OCAUST. They have family values and their alcohol, tobacco and firearms are 20% off". And "Wal-Mart. Come for the LOW prices. Stay for the KNIFE FIGHT."
Wal-Mart, the largest corporation in the world and owner of Asda in the UK, issued a cease-and-desist order. And Smith, in true US style, is no longer selling his products but has sued in federal court for the right to continue selling, even if only occasionally.
"It's about free speech and the right to comment on corporations and their images and their trademarks," Smith's lawyer, Paul Alan Levy of Public Citizen, told the Los Angeles Times. "Just because the trademark owner doesn't like [it] doesn't mean it isn't a permissible use of language."
Wal-Mart spokeswoman Sarah Clark told the the paper: "Wal-Mart will aggressively protect our brand by taking appropriate legal action against those that inappropriately use our name or improperly profit from our name."
The case recalls McLibel, the case in England in which a postman and gardener took on McDonald's. Although the McLibel Two lost and were ordered to pay McDonald's £40,000 in damages, they appealed to the European court in Strasbourg which ruled that the British government had breached the European convention on human rights by not allowing the pair legal aid. The case did McDonald's reputation no favours.
Anti-Wal-Mart rants are especially in vogue. Smith was helped in his search for a lawyer by Robert Greenwald, maker of thehit documentary Wal-Mart: The High cost of Low Price.
Given recent US legal history, Wal-Mart may lose. "There's a pretty strong free-speech argument," Neil Netanel, a UCLA law professor, told the LA Times. "If it's clear that what's happening is an effort to criticise and parody the trademark owner to make a point, then courts will generally side in favour of the parodist."
In a similar fight in 2004, Mattel failed to squelch nude photos of America's best-selling doll, Barbie. The toymaker hauled artist Tom Forsythe into court for his series of photos, Food Chain Barbie.
In one photo, Barbie Enchiladas, four Barbie dolls were inside a cooker, wrapped in tortillas and slathered with salsa. The outcome? A judge ordered the toymaker to pay the defendant $1.8m in court costs and legal fees.
Texas ranchers also famously lost a suit in 1998 against TV host Oprah Winfrey. Their beef, under a bizarre state law to protect food from false and defamatory statements, concerned Winfrey's comment in response to a vegetarian activist saying that mad cow disease might be caused by feeding animal parts to herbivorous cattle. "[That] has just stopped me cold from eating another burger", she said.
