Facebook's Kentucky Colonel Conundrum

Case Study in Trademark Misuse, Bullying, Censorship, and the Public Domain in the Social Media

Introduction: This article examines a recent case of online censorship involving Facebook, the Honorable Order of Kentucky Colonels (HOKC), and author, Hon. David J. Wright, a Kentucky Colonel engaged in a protracted legal dispute with the HOKC. The case highlights the complex interplay between trademark law, the First Amendment, and the public domain, exposing how misleading legal tactics and corporate overreach can stifle free speech, impact society, distort history, and result in the seizure of significant intellectual property causing damage to thousands of members engaged in a civil society association organized using social media platforms.

Col. David Wright challenges the authority of the HOKC with reprinting the Kentucky Colonels Handbook from 1930 proving they were not the first, are not original and do not need or deserve trademark protection from the USPTO. Col. Wright alleges that they misled the USPTO to get the term "Kentucky Colonels" trademarked unlawfully concealing known information starting in 2003.

The Kentucky Colonel Controversy

The Kentucky Colonel title, an honorary commission bestowed by the Governor of Kentucky, has been the subject of ongoing contention between the HOKC, a private non-profit organization, and Col. David Wright with various individuals and groups who contest the HOKC's claims of authority, exclusivity, and challenge its dubious origin story which has caused historical revisionism. The HOKC asserts that the title originated in 1813, while others, including Col. Wright the original author of a "Kentucky Colonels" website in 1998, prior to the HOKC appearing online, argue for an earlier origin dating back to the late 18th century, citing the presence of Colonel Daniel Boone and twelve other Colonels at the founding of the Transylvania Colony in 1775, which became Kentucky the following year.

This disagreement escalated into a legal battle when the HOKC filed a lawsuit against the author and his association, Kentucky Colonels International, alleging trademark infringement, cybersquatting, and unfair competition in 2020. While the HOKC holds trademarks for specific commercial uses of the term "Kentucky Colonels," an Agreed Injunction explicitly permits non-commercial use for descriptive, educational, and informative purposes. This distinction is crucial, as it underscores the HOKC's attempts to control the narrative and limit the use of a term that unquestionably belongs to the public domain.

The Facebook Suspension and Seizure of Intellectual Property

The present controversy arose when the author made Facebook posts challenging the HOKC's narrative and asserting the historical accuracy of an alternative origin story. These posts, which were garnering significant attention, prompted the HOKC's legal counsel, the Wyatt Firm, to file a complaint with Facebook, alleging that the post violated the HOKC's trademark rights.

Facebook, acting on this complaint, not only suspended the author's personal account but also seized control of two, possibly three, Facebook groups, five Facebook pages, and the author's public figure profile. This action effectively silenced the author's voice, prevented him from engaging in further discussion about the Kentucky Colonel title, from organizing, and resulted in the loss of 18 years' worth of accumulated intellectual property. This sweeping seizure of digital assets, based on a misleading and incomplete representation of the legal dispute, raises serious concerns about censorship, corporate overreach, and the disproportionate impact of intellectual property claims on online platforms. It is clear that Facebook was defrauded with a sophisticated strategic legal maneuver to chill the author's rights.

Misleading Legal Tactics and the Misrepresentation of the Injunction

The Wyatt Firm's complaint to Facebook failed to disclose crucial facts about the ongoing legal dispute. Firstly, it omitted the fact that the matter is currently under appeal in the US Circuit Court of Appeals, implying a finality that does not exist. Secondly, it misrepresented the scope of the injunction, neglecting to mention the explicit provision allowing for non-commercial use of the term "Kentucky Colonel." Thirdly, it failed to acknowledge Col. Wright as a 29 year member of the HOKC.

This deliberate omission of crucial information misled Facebook into believing that the author's post and online activities constituted a violation of the HOKC's trademark rights, when in fact, they fell within the permissible boundaries of the injunction. This manipulation of information undermines the integrity of the legal process and allows a private entity to exert undue influence over a platform that serves as a vital space for public discourse and community building. Finally if the other points of Wright's defensive position fail, he deserves immunity from the court as a whistleblower since he was a member and has affirmed agreements between himself and the HOKC previously.

First Amendment Violations and the Suppression of Free Speech

The author's Facebook activities, including his recent post, his engagement in Kentucky Colonel groups, and his management of pages dedicated to the history and traditions of the title, are all protected speech under the First Amendment. They contribute to a broader conversation about Kentucky's heritage, challenge the dominant narrative propagated by the HOKC, and foster a sense of community among Kentucky Colonels.

By suspending the author's account and seizing his intellectual property based on a misleading complaint, Facebook is effectively stifling free speech, preventing the dissemination of alternative viewpoints, and disrupting online communities. This action sets a dangerous precedent, whereby powerful entities can leverage legal processes and corporate influence to silence dissenting voices, control online narratives, and confiscate digital assets.

The Public Domain and the "Honorable Order of Kentucky Colonels"

Adding another layer of complexity to this case is the public domain status of the phrase "Honorable Order of Kentucky Colonels." As established earlier, this phrase, created by a government official, is ineligible for trademark protection due to its lack of originality and descriptive nature.

This further weakens the HOKC's claims and casts doubt on the legitimacy of their complaint to Facebook. By acting on this dubious complaint, Facebook is not only violating the author's First Amendment rights but also contributing to the suppression of a term that rightfully belongs to the public.

Fair Use and the Kentucky Colonels Handbook

The author's engagement with the Kentucky Colonels Handbook, set to enter the public domain in 2025, also raises questions of fair use. Even if the handbook were still under copyright, the author's use of its content for educational and informative purposes would likely fall under fair use, further invalidating the HOKC's attempts to restrict his speech.

The doctrine of fair use allows for the limited use of copyrighted material without permission from the copyright holder for purposes such ¹ as scholarship, research, criticism, commentary, or news reporting. The author's activities clearly fall within these parameters, reinforcing his right to utilize and discuss the contents of the handbook. 

The Disproportionate Impact on Intellectual Property

The seizure of the author's Facebook groups, pages, and profile represents a significant loss of intellectual property. These digital assets, cultivated over 18 years, represent not only the author's personal investment of time and effort but also the collective knowledge and contributions of the online communities he fostered.

This case highlights the vulnerability of digital creators and online communities to intellectual property claims, even when those claims are based on misleading or inaccurate information. The disproportionate impact of such seizures can have a chilling effect on free speech and discourage individuals from engaging in online discourse, particularly on controversial topics.

Conclusion: A Call for Transparency and Accountability

This case serves as a stark reminder of the challenges to free speech in the digital age. It highlights the power of corporations to influence online discourse, the vulnerability of digital creators to intellectual property claims, and the need for greater transparency and accountability in content moderation practices.

Facebook's uncritical acceptance of the HOKC's misleading complaint and subsequent seizure of the author's digital assets demonstrate a troubling disregard for the principles of free speech, the public domain, and the protection of intellectual property. This incident underscores the need for platforms like Facebook to adopt more robust safeguards against censorship, manipulation by powerful interests, and the disproportionate enforcement of intellectual property claims.

The author's experience is a cautionary tale for all who engage in online discourse, particularly those who challenge established narratives or critique powerful entities. It is a call for vigilance in defending digital rights and a reminder that the fight for free speech is an ongoing battle that requires constant attention and advocacy.

By raising awareness of these issues and demanding greater accountability from tech giants, we can work towards a digital landscape that fosters free expression, protects the public domain, safeguards intellectual property rights, and ensures that online platforms remain spaces for open dialogue and the exchange of ideas.