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MoveOn.org is being hauled into federal court for allegedly using Louisiana's motto on a billboard criticizing Gov. Bobby Jindal.
Lt. Gov. Jay Dardenne filed a federal suit against MoveOn.org in his official capacity as both lieutenant governor and commissioner of the Louisiana Department of Culture, Recreation and Tourism claiming that the advocacy group used the state's service mark and motto without permission, reports The Times-Picayune.
Can a political billboard crib a state's motto like that?
Although it's certainly strange to think of a state as having trademark rights, state-run tourism departments pour millions into marketing campaigns for their states -- including service marks and slogans. Louisiana is by no means the biggest spender when it comes to tourism budgets, but the U.S. Travel Association reported that Louisiana had a $13.2 million provisional budget for tourism from 2012 to 2013.
With millions on the line to craft and support a slogan like "Pick Your Passion," you can imagine why the state would be hacked off when MoveOn.org displayed that motto on its billboard. Lt. Gov. Dardenne's suit alleges that the state has spent almost $70 million in the "Louisiana Pick Your Passion" marketing campaign since its January 2011 inception.
This suit followed an unsuccessful cease-and-desist attempt by Lt. Gov. Dardenne, which allegedly prompted MoveOn.org to create a television ad featuring the offending billboard -- an ad which was also uploaded to YouTube. The complaint levies violations under both the Lanham Act and corresponding Louisiana laws.
While the use of Louisiana's mark and motto in this ad is seemingly deliberate, the billboard doesn't seem to be poaching the state's business -- it's making a statement about Gov. Jindal's stance on Medicare.
Federal courts have protected satirical or parody pieces from Lanham Act claims before, in many cases because the offending pieces' authors were not actual competitors seeking to deceive consumers by using trade or service marks. The claims made by Dardenne make a very fine distinction to sidestep this fair use exception for parody: Parody comments on the original author's works, but Gov. Jindal wasn't the author of the "Pick Your Passion" mark.
This seems to be a very thin reed upon which to attack a parody or fair use defense. Courts have protected several non-commercial "parody" uses of registered marks, even when the parody is used to make a political statement.
Perhaps the district court will sort out this question of parody in its decision, just in time for Dardenne's gubernatorial campaign.
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