–Susan Perera, Attorney
Like most 20-somethings who went to college during the rise of this social media monster, I am quite familiar with Facebook. However, I wasn’t aware of the website Lamebook until the current legal dispute began. Lamebook, a self-proclaimed, “humor blog” was designed to allow people to share the most “ridiculous” things
The newest fare at the Minnesota State Fair is not Camel-on-a-Stick, Buffalo-on-a-Stick, or any other kind of Food-on-a-Stick, but rather, Trademark-on-a-Stick.
Earlier this week, the Minnesota State Fair (owned and operated by the Minnesota State Agricultural Society, a Minnesota State Agency) was hot to skewer the unauthorized use of its nearly three-decade-old and more recently trademarked logo, by incumbent Republican U.S. Congresswoman Michele Bachmann, in a political ad targeting DFL challenger Tarryl Clark’s record on tax policy.
This trademark objection has generated quite a bit of publicity, with coverage being reporting by MinnPost, The Minnesota Independent, the New York Times (blog), Politics Daily, MPR News, TPM, and Politico. The Bachmann ad referenced the MN State Fair and used its official logo while suggesting that Clark has voted to increase taxes on what foodies covet at the fair, including their favorite corn dogs, deep fried bacon, and beer.
Central in the debate over the lawfulness of the Bachmann campaign’s use of the logo is a question we have pondered on DuetsBlog before (e.g., here, here, and here), namely, whether the use of another’s logo crosses the legal line and is likely to cause confusion as to sponsorship, affiliation, approval, or endorsement, or whether it may constitute lawful nominative fair use. So, it should be no surprise to readers of DuetsBlog, that in the end, it is consumer understanding of the use in the ad that controls whether or not it is lawful.
The Minnesota State Fair’s objection certainly is not frivolous and is rooted in a common and traditional trademark concern over likelihood of confusion. Bachmann for Congress political ads begin with the statement: "I am Michele Bachmann and I approve this message." According to Minnesota State Fair officials, Bachmann’s use of the above Minnesota State Fair logo is likely to lead viewers to incorrectly believe that the Minnesota State Fair approves Congresswoman Bachmann’s message or has endorsed her campaign. What do you think, is that what viewers will believe?
Bachmann’s campaign denies that the logo use was unlawful, but without explaining why no confusion is likely and without specifically articulating what would likely be a nominative fair use defense, it voluntarily has decided to drop use of the official logo and instead opted to switch to a more "generic" image. Apparently what the campaign means by "generic" is not that it lacks the look of a trademark and/or logo, but rather is one not specifically used or owned by the Minnesota State Agricultural Society.
Bachmann for Congress’ revised television advertisement may be viewed here, showing no use of the trademarked official logo, but I’d hardly call the use "generic" — it remains a logo use, even if it is a fake one that swaps fireworks for a ferris wheel, and alters the color scheme and typeface. Do you think that consumers will notice or recognize the fake logo as being fake or just believe it is an additional logo used by the MN State Fair that they haven’t seen before?
Interestingly, the change may not be enough to satisfy the MN State Fair. Apparently, it continues to have concerns about the revised Bachmann ad, and it has asked the Attorney General to look into the question of whether the change is sufficient to avoid confusion as to endorsement of the Bachmann campaign. Having said that, with only a few more days left before the close of the 2010 MN State Fair, one must wonder whether the campaign will move on and moot this lingering concern too, leaving the State Fair ads behind, as it continues to run new ads down the final stretch of the campaign.
Stay tuned, tomorrow I’ll attempt to make the case for why the State of Minnesota needs to hire an experienced trademark attorney.
Bonus political speech consideration below the jump:Continue Reading Fair Logo, Fair Use & Fair Politics? The Minnesota State Fair’s Trademark-on-a-Stick
We’ve had a little rash of graphic design comedic parody lately.
The first example is the notoriously funny The South Butt and its tagline "Never Stop Relaxing". Of course, this is an obvious knockoff of leading outdoor clothier The North Face and its "Never Stop Exploring" call to action. From a legal perspective, of course
Jacket maker Weatherproof Garment Company took advantage of a GQ-style photo of the President standing in front of the picturesque Great Wall of China.
The White House was not pleased.
Smack in the middle of Times Square in New York – one of the busiest and most-watched intersections on Earth – stood a larger-than-life billboard
–Sharon Armstrong, Attorney
Earlier this week the Legal Satyricon and a number of newspapers in the Southeast reported on the University of Alabama’s loss of part of its trademark infringement suit against former licensee Daniel Moore, an artist who has created original paintings featuring the UA’s athletes for over 30 years. UA argued that it
–Dan Kelly, Attorney
Last week, a group calling themselves The Yes Men apparently perpetrated an elaborate hoax to usurp the corporate persona of the United States Chamber of Commerce, to the point of publishing a fake website and holding a press conference at the National Press Club, posing as the Chamber itself. (Image
Back in May, I wrote a piece entitled “Re-Branding Madness in Washington” Overlooks Obvious: The Washington Redskins,” discussing the trademark cancellation action that I filed on behalf of seven prominent Native American leaders back in September 1992 (Harjo et al v. Pro-Football, Inc.), and calling for the football team to “hire a branding
A picture can say a thousand words; so does a face. The same is probably true of non-verbal logos, including the several federally-registered “Chief Wahoo” logos, shown above (all apparently still in use by the “Cleveland Indians” professional baseball team, according to their latest trademark filings).
So, what do they say to you?
My take? I can think of quite a few words to describe them, but none includes the word “honor,” as is often the claim made by those in favor of keeping Native American mascots.
From my perspective, “Chief Wahoo” is the non-verbal equivalent of the Redskins racial slur that I blogged about last week.
Last month I blogged about Non-Verbal Logos That Can Stand Alone, and while “Wahoo” certainly can “stand alone” as a non-verbal logo, unlike the famous Nike Swoosh and McDonalds Golden Arches, “Wahoo” should simply “stand alone” in the corner of a dark closet with the door shut and locked.Continue Reading “Chief Wahoo” Re-Branding Underway? A Painful Lesson on Saving Face
Re-branding occurs all the time.
Re-branding occurs in business. Remember when Bell Atlantic became Verizon? Andersen Consulting became Accenture? How about when Philip Morris became Altria?
Re-branding occurs in politics too. Just days ago, Judson Berger discussed a kind of “re-branding madness” consuming Washington, D.C. right now: “Terrorist attack is out. — ‘man caused disaster’ is in.” Our friends at Catchword Branding had a lot of fun with the political re-branding of Swine Flu.
Re-branding even occurs in the world of professional sports. Remember when the NBA franchise Washington Bullets became the Washington Wizards in 1997 out of concern that the Bullets name of some twenty-three years (1974-1997) had acquired “violent overtones”. How about the recent re-branding from the Seattle Supersonics to the Oklahoma City Thunder? Even the NFL has decided to recognize Cincinnati Bengal Chad Johnson’s re-branding to Ocho Cinco.
Re-branding changes, according to Wikipedia, are “usually in an attempt to distance [the brand] from certain negative connotations of the previous branding.” So, given the widespread meaning and understanding of “redskin” as “offensive slang” and that it is “used as a disparaging term for a Native American,” given the pain the term has caused, and given that the team’s helmets sport a Native American profile and not a certain variety of spud on them, why won’t the Washington Redskins get on the re-branding bandwagon in our nation’s capital? After all, even one of the attorneys at the same law firm hired by the team apparently has spoken out, read about the details here.Continue Reading “Re-Branding Madness in Washington” Overlooks Obvious: The Washington Redskins
–Dan Kelly, Attorney
Gripe sites have been around for almost as long as the Internet itself, and they tend to be difficult to shut down. Conventional wisdom among brand owners is to send a threatening letter and play the odds that the (likely) individual with an axe to grind will not want to get sued
