Here comes IP law, being pressed into service as a censor once again. (h/t to Techdirt reader dave blevins)
The state of Louisiana is suing MoveOn.org for its billboard criticizing the state's Governor for his Medicaid policies. It uses the state's trademarked slogan ("Pick your passion!") as part of its commentary. Here's the billboard in question.
This billboard prompted Lt. Governor Jay Dardenne into action, who sent a cease and desist on behalf of his office in an effort to get the signs taken down
Lt. Gov. Jay Dardenne sent a cease-and-desist order to MoveOn on Thursday, asking the advocacy organization to take down a billboard along Interstate 10 that parodies Louisiana's "Pick your Passion" tourism slogan. The billboard, which mentions [Governor] Jindal by name, is critical of the governor and legislators' decision not to expand the state Medicaid program under federal health care reform.
Originally, Dardenne claimed the billboard could confuse people, making them think the state itself had created the signs. But his cease and desist order contained more than just that particular claim, with apparent cases of "confusion" only being limited by the lawmaker's imagination. Here's some of MoveOn.org's response to the C&D.
First, the determinative issue is whether the use of the Mark creates a likelihood of confusion among relevant consumers. Clearly, MoveOn is not using the Mark for the advertisement of any goods or services of its own whatsoever. Your letter contends, however, that there is a "strong likelihood that a reasonable consumer will believe the Lieutenant Governor is the source. . .of the billboards" and is likely to be confused into believing this office is involved in a dispute with the Governor over Medicaid expansion."
To the contrary, MoveOn's sponsorship of the billboard is clearly denoted. The advertisement is manifestly a criticism by our client of the position of the Governor on Medicaid expansion. The Lieutenant Governor is not mentioned or referenced in any way in the advertisement. No reasonable Louisiana citizen or visitor could conceivably look at this billboard and conclude that it is about a dispute between two state officials, as opposed to a criticism of the Governor's policy by an advocacy group.
That's a pretty extreme stretch by Dardenne. Had he stuck with simple confusion of whether the state itself was behind the billboards, he might have been on more solid ground in terms of reasonableness. But as the response letter notes, Dardenne himself implicitly acknowledged the billboard was a parody. When it came to specifics detailing exactly how MoveOn.org was misleading the public, Dardenne failed to provide any.
You allege that the billboard had "already caused confusion regarding the source of the message" but cite no facts or evidence.
Now that Moveon.org has shot down his C&D, Dardenne is taking the organization to court.
"We have invested millions of dollars in identifying the Louisiana: Pick Your Passion brand with all that is good about Louisiana. No group should be allowed to use the brand for its own purposes, especially if it is for partisan political posturing," Dardenne said in a statement announcing the suit.
"MoveOn.org has every right to attack Gov. Jindal, the state's refusal to accept Medicaid or, for that matter, me personally. But they do not have the right to use our protected service mark, which is used solely for the purpose of promoting and marketing Louisiana. We own the mark and its use is under the direction of my office, not the Office of the Governor."
The filing reiterates Dardenne's claims that the billboard gives the impression that the Lt. Governor's office is attacking the governor of the state. It also makes the claim that because Governor Jindal is not the "author" of the claimed marks, the billboard is not a protected parody.
Louisiana and federal jurisprudence has provided that a parody is defined as an artistic work that imitates the characteristic style of an author. For the purposes of copyright and trademark law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. Plaintiff avers that infringement of the Service Marks by MoveOn.org does not constitute parody under the fair-use doctrine because the subject of the parody, Governor Bobby Jindal, is not the author of the Service Marks, as is required.
While Dardenne's claim is technically correct (in regards to commenting on the "author's" work), in terms of confusion, there's very little separating a state's slogan and its government (as a whole, rather than a division of wholly separated offices according to Dardenne's hair splitting). Dardenne's claiming that because his office
(the Lt. Governor's) designed the state's word mark and slogan, it is no longer a protectable parody. This argument utitlizes imperceptible (to outsiders) differences in an attempt to remove the parody protections that would appear to cover MoveOn's work.
Whether or not the court agrees with Dardenne's arguments remains to be seen, but the underlying feeling that this is solely a politically-motivated move (with all of its First Amendment implications) is palpable. MoveOn.org is a left-leaning organization, while Gov. Jindal and his lieutenant are both Republicans. Simply utilizing trademark law to shut down criticism is always a bad idea. Allowing political motivations to override common sense is even worse. As the article notes, MoveOn.org has deployed similar campaigns in Texas and Florida, but no state rep has been foolhardy enough to attack speech by brandishing the state's trademarks as weapons.
In the long run, even if Dardenne wins, he (and the state) still lose. This legal attack has only raised the visibility of MoveOn's critical campaign. And the cries of "censorship" that would follow a successful lawsuit will only make the office of the governor look worse.