The problem with a direct system is that it's pretty easy for that restaurant to bypass the taxes that are normally accessed on alcohol. By funneling everything into a middleman, the state can insure that the brewer gets taxed, the middleman and the restaurant. The big vs. little is just a red herring, this is just a cash grab by the state.
Defamation, slander, even beating the fair use defense is admitedely a stretch, but TPM acted did act unethically in this case and while the NYSE shouldn't get any love for being ham fisted, TPM should have taken the high road by correcting the mistake and using a photo of one of the hedge funds involved instead. If you look at the bigger picture, this really isn't about trademark law, it's about journalistic integrity. In the blog post Mike writes how he doesn't see how the NYSE was harmed, but if this was a case where the brands were more recognizable by consumers then this harm would be clear.
A.) They're not "suing" anybody yet, but if TPM tries to raise a fair use defense, they may run into trouble because the NYSE had nothing to do with the original story. B.) This is exactly what they are complaining about,
"your unauthorized used of the images of the trading floor, tarnishes NYSE's trademarks and it's affiliated companies by associating NYSE trademarks with entities and issue with which it is not affiliated or relevant."
Again, this doesn't make the NYSE right, but you can see their point. Can you imagine the uproar if TPM used a Starbucks photo for a story about slave labor in China? Even though the two had nothing to do with each other, Starbucks brand would still be guilty by association. The NYSE is a 200 year old institution, the hedge funds that were busted for sleazy behavior were young companies that had much less regulation. To use a NYSE photo with the story is almost slanderous. The mere fact that no one seems to acknowledge this is proof that the NYSE has a branding problem and should be defending their reputation somehow.