Who would be disrespecting the memory of Anne Frank the most in this situation: Roger Waters for using her name to make an argument against hate, or the Anne Frank Foundation for suing him over an alleged breach of its trade mark?

It’s a hypothetical situation, of course. This Writer hopes nobody at the Anne Frank Foundation would be unreasonable enough to take it that far.

It’s not the Anne Frank Foundation that has even raised the issue, you see. It’s a group here in the UK, called UK Lawyers for Israel.

An article on that organisation’s website states:

Waters used the name Anne Frank to defame Israel by comparing Shireen Abu Akleh with Anne Frank, as shown in photographs posted on Twitter.

Shireen Abu Akleh was an American journalist of Palestinian Arab extraction who was killed in the course of an Israeli military operation in Jenin last year. The Israeli Defence Forces (IDF) have accepted that there is a high possibility that an Israeli soldier fired the bullet that killed her, but deny any intention to kill a non-combatant journalist. Roger Waters’ display was evidently intended to suggest that Abu Akleh, like Anne Frank, was murdered by evil fascists, and that the IDF are like the Nazis (a typical example of antisemitism according to the IHRA definition).

During the concert, Waters also dressed up as an SS officer.

Anne Frank Stichting registered “Anne Frank” as a trademark inter alia in Class 41 for entertainment services in various jurisdictions. Roger Waters’ abuse of the mark seems liable to harm its functions and without due cause to take unfair advantage of its distinctive character and repute and/or to be detrimental to the distinctive character or repute, thereby infringing the rights of the Anne Frank Stichting.

There might also be infringement of personality rights inherited by Anne Frank Stichting in some jurisdictions.

Let me get this straight: an organisation in the UK, of lawyers who support Israel, wants an organisation in the Netherlands to take action against the star of a concert that happened in Germany, because it mentioned in passing a name that the Dutch group has trademarked?

There are several issues here: first, Anne Frank was a person. Reducing her to a trademarked name and then litigating against someone else for using that name would be dehumanising behaviour that, in my opinion, may count as anti-Semitic in itself. I can’t see the Anne Frank Stichtung acting in that way, personally. UKLFI may need to reconsider its own approach also.

What would a lawsuit be about – infringement of a trade mark or defamation of Israel? If the latter, then it is nothing to do with the Anne Frank Stichtung.

The use of her name for entertainment purposes would also be problematic, I think. Was the concert advertised as having anything to do with Anne Frank? Was her name on display throughout the performance, or only for a period amounting to seconds? Is there any reason to believe that people attended the show in question (in Berlin, in mid-May) because of the use of Anne Frank’s name? If not, then it seems unlikely a trade mark infringement suit would have any traction. Mention of her would likely come under the category “fair use”.

The connection with Shireen Abu Akleh would also need to be scrutinised. Were the two names projected as described by UKLFI, one immediately after the other, or were they separated by other names? If they were separated, then how is Israel defamed? Whether they were or not, what other names were also projected? What were the reasons those names were also used? Is it reasonable to suggest that the names were projected for entertainment purposes, or to make an argument, and in that case, what is the argument supporting – hate, or peace?

If UKLFI is arguing that Roger Waters wrongly equates the death of Anne Frank with that of Shireen Abu Akleh (perhaps claiming that he was saying both were caused by invading oppressors), then the circumstances of Shireen Abu Akleh’s death would have to be explored. Jenin is a city in Palestine; what were Israel Defence Forces doing there if not invading from another country? What were their activities there intended to convey to the inhabitants, if not oppression? What reason did they have for using projectile weapons in a space where non-combatant civilians might be harmed, if not fatal harm? Can it be proved that criticism of the Israeli government and military for carrying out the “operation” and causing the harm that it did is unfounded? If it cannot, than how can Israel be defamed by what Roger Waters has said about this incident?

When in the concert did Roger Waters state that the Israeli Defence Forces are “evil fascists”?

When did he say the IDF are “like Nazis”?

And – in the context in which mention of Anne Frank and Shireen Abu Akleh were mentioned – is it unreasonable to have made such a comparison? Was there a correlation between the behaviour of the Nazis towards Anne Frank and that of the IDF towards Shireen Abu Akleh?

Does UKLFI really want that tested in court, considering the likely consequences if a judge rules that it is reasonable to compare the behaviour of the Nazis and IDF and find it similar?

Worse for UKLFI is the claim that “Waters also dressed up as an SS officer”, which is not true and undermines UKLFI’s credibility.

Finally, Roger Waters’s lawyers will have been all over this. If any court action did ensue, I expect they would squash it in short order.

Add it all together and This Writer thinks it would be very difficult to make an argument in support of a lawsuit – whether for trade mark infringement or defamation (and I know a thing or two about defamation).

Finally, this is a worthwhile point, also:

Fair point? Note also that the Twitter user above does not speak for Roger Waters and their opinions must be treated as their own.

Ultimately, This Writer’s opinion is that the claims made by UKLFI are unlikely to be able to stop Roger Waters behaving as he has, may do nothing to improve the standing of Israel, and may actually harm the name of Anne Frank.

Am I right?

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