from the use-in-commerce? dept
However, it's worth noting that the folks over at the Austinist blog have mocked the plan, insisting that it infringes on Texas' trademark on "Don't Mess With Texas" (also the Austinist article seems to go back and forth between trademark and copyright, not recognizing that the two are different). Texas' Department of Transportation (DOT) holds a trademark on the phrase as part of its anti-littering efforts. I had actually thought about this earlier, as we've written about how the state of Texas has been overly aggressive with the trademark, such as going after book authors who have used the title.
Of course, there's a big problem here if Texas does decide to challenge this particular billboard: trademark law covers use in commerce. The billboard in question is not selling anything, is not used in commerce and is pretty clearly protected political speech. The Austinist blog seems to assume, incorrectly, that a trademark is a blanket rule that blocks any such use by anyone ever. That's wrong. It wouldn't surprise me to see Texas still complain and maybe even file a lawsuit, but I can't see how it has any chance of winning at all. In fact, if it did go down that path, the state of Texas might quickly learn that you "don't mess with the internet."