Lt. Governor Of Louisiana Sues MoveOn.org Over Parody Campaign Targeting Governor's Policies

from the doing-MoveOn.org's-awareness-legwork-for-it dept

Wed, Mar 19th 2014 8:47am — Tim Cushing

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.

211654679 MoveOn S Response to Louisiana Lieutenant Governor S Cease and Desist Letter Re Medicaid Billboard (PDF)211654679 MoveOn S Response to Louisiana Lieutenant Governor S Cease and Desist Letter Re Medicaid Billboard (Text)

Dardenne Complaint (PDF)Dardenne Complaint (Text)

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Filed Under: bobby jindal, jay dardenne, louisiana, medicaid, pick your passion, trademark
Companies: moveon.org

37 Comments

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Ninja (profile), 19 Mar 2014 @ 7:15am

Requirements to be employed in the Govt or a politician
Thin skin must be at the top. Or is he mad because there's truth in the parody and he's afraid people will see him for the bad representative he is?
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- Anonymous Howard (profile), 19 Mar 2014 @ 9:36am
  
  Re: Requirements to be employed in the Govt or a politician
  The butthurt is strong with this one!
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- Anonymous Coward, 19 Mar 2014 @ 9:48am
  
  Re: Requirements to be employed in the Govt or a politician
  When someone is acting on belief, rather than on proven principles supported by evidence, all they can do about criticism of their actions is to try and shut it down.
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Anonymous Coward, 19 Mar 2014 @ 9:11am

Free speech for me but not for thee
The state of Louisiana doesn't understand free speech at all, evidently.

They cried out 'free speech!' after the duck dynasty manufactroversy, yet there was no free speech issue. Now here they're trying to censor their critics.
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- Anonymous Coward, 19 Mar 2014 @ 9:55am
  
  Re: Free speech for me but not for thee
  That sword cuts both ways.
  
  Moveon.org has proposed that major newspapers in this country refuse to publish letters to the editor that are critical of Climate Change.
  
  Moveon.org is nowhere near a noble defender of free speech. They're just partisan hacks.
  
  But, as any good First Amendment advocated knows, the First Amendment isn't just for people you agree with, it for lefty partisan hacks and climate deniers alike.
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  - Mason Wheeler (profile), 19 Mar 2014 @ 10:40am
    
    Re: Re: Free speech for me but not for thee
    After nearly 2 decades of partisan hackery, do you ever wish MoveOn... would?
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  - who cares (profile), 19 Mar 2014 @ 10:44am
    
    Re: Re: Free speech for me but not for thee
    Uh, that proposal in itself is also free speech since it is the newspapers which decide to listen to them or not on a completely voluntary basis. Things get different the government steps in.
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  - Anonymous Coward, 30 Mar 2014 @ 7:16am
    
    Re: Re: Free speech for me but not for thee
    I agree that it does 'cut both ways' and that the proposal is a bad one, but it only becomes a 1st Amendment issue if they demand the government take action to suppress said letters to the editor
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Anonymous Coward, 19 Mar 2014 @ 9:13am

Meh.

Wouldn't have been news if it'd been a conservative organization making fun of Medicaid expansion that *was* happening, and a liberal government trying to shut it up.

But that's just because the conservatives are wrong about Medicaid.
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- Baron von Robber, 19 Mar 2014 @ 9:23am
  
  Re:
  +1 for funny =D
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iCleverUserName (profile), 19 Mar 2014 @ 9:15am

Hilarious
Republicans using the very government they "hate" to shut down a free-market corporation? Shocking
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- Anonymous Coward, 19 Mar 2014 @ 9:29am
  
  Re: Hilarious
  As a conservative this part is what I hate most about the Republican party.
  
  But you have to be fair... the Democrats really do not seem to be any bit better. Both parties seem to worship at the corporate wang. As long as that muny keeps rolling in, they keep sucking away. They only stop long enough to make sure that the peasantry are not getting too rowdy over it.
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  - Anonymous Coward, 19 Mar 2014 @ 9:32am
    
    Re: Re: Hilarious
    Talk about the money shot.
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  - John Fenderson (profile), 19 Mar 2014 @ 10:12am
    
    Re: Re: Hilarious
    "Both parties seem to worship at the corporate wang."
    
    Exactly correct, which is one of the big indicators that partisanship itself is a load of bullshit that is intended to keep us serflings too busy battling with each other to notice who our actual enemy is.
    [ link to this | view in chronology ]
    - Baron von Robber, 19 Mar 2014 @ 10:16am
      
      Re: Re: Re: Hilarious
      It's why I say, Democrats pretend to care about the common people. Republicans don't even pretend.
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      - Anonymous Coward, 19 Mar 2014 @ 12:04pm
        
        Re: Re: Re: Re: Hilarious
        Depends on your point of view.
        
        Showing how you care in the public square doesn't really mean anything! It is best to be more suspect of those that say "I care more than the other" than those that appear to not care at all.
        
        Judge a person by their actions, not their tongues.
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    - Anonymous Coward, 19 Mar 2014 @ 12:10pm
      
      Re: Re: Re: Hilarious
      It has been very effective too.
      
      George Washington in his farewell address pretty much predicted the Civil War and our current problems having this 2 party system.
      
      He said for everyone to be "Americans" and stop this North/South, East/West, Party vs Party crap and succinctly explained why. Our founders seem to be men ahead of their times and we have spend the last 50 years pissing it away as fast as can be.
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crade (profile), 19 Mar 2014 @ 9:15am

"Here comes IP law, being pressed into service as a censor once again"

Sure, twist it's rubber arm.
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John Snape (profile), 19 Mar 2014 @ 9:23am

left-leaning?
MoveOn.org is "left-leaning?"

And I suppose Stalin had "leftist sympathies."
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- Baron von Robber, 19 Mar 2014 @ 9:25am
  
  Re: left-leaning?
  Hmm, the Anti-Godwin's Law?
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- Greg, 19 Mar 2014 @ 9:40am
  
  Re: left-leaning?
  And your Joke about one of the most brutal dictators in history is what exactly
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  - Baron von Robber, 19 Mar 2014 @ 9:45am
    
    Re: Re: left-leaning?
    Well the joke being that leftwing loons are quick to call "Hitler" in the comment section. That's call Godwin's Law
    
    I was pointing out a rightwing retard that was quick to call out "Stalin" in a comment section wondering if this is Anti-Godwin's Law.
    
    Now back to the playpen with you.
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    - JEDIDIAH, 19 Mar 2014 @ 9:52am
      
      Re: left-leaning?
      Hitler is just the most prominent "fascist" just as Stalin is the most prominent "communist". Although I see both of those political terms used far more often as insults. Rarely do I see the names being bandied about.
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    - John Snape (profile), 19 Mar 2014 @ 9:53am
      
      Re: Re: Re: left-leaning?
      And you believe I'm a "rightwing retard" because I want to call things the way they are? MoveOn.Org are definitely left-wing, not just "left-leaning," just as the Koch brothers are right-wing, and not just "right-leaning."
      
      That is my only point, no more, no less.
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      - John Fenderson (profile), 19 Mar 2014 @ 11:52am
        
        Re: Re: Re: Re: left-leaning?
        "That is my only point, no more, no less."
        
        No, it wasn't your only point. Your other point was to equate MoveOn with murderous dictator.
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        Anonymous Coward, 19 Mar 2014 @ 2:40pm
        
        Re: Re: Re: Re: Re: left-leaning?
        At which point Godwin's Law was invoked the conversation was over, and he lost his credibility. Time to move on three indentations ago.
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        Baron von Robber, 19 Mar 2014 @ 2:44pm
        
        Re: Re: Re: Re: Re: Re: left-leaning?
        Godwin's or Anti-Godwin's? Or is Stalin considered = Hitler in that respect and both are Godwin's?
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        John Snape (profile), 19 Mar 2014 @ 3:33pm
        
        Re: Re: Re: Re: Re: left-leaning?
        I'm not sure where, exactly, I said MoveOn.Org are murderous dictators.
        
        Can you point to the sentence where I said exactly that?
        
        You might want to turn down your sensitivity dial. The quick and severe backlash might signify I've hit a nerve where I didn't mean to.
        
        Mr. Fenderson, et al., doth protest too much, methinks.
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- JBDragon, 19 Mar 2014 @ 11:36am
  
  Re: left-leaning?
  MoveOn.org is so far to the left, it's a FACT!
  
  In this case, trying the Ban the sign the way they are trying is wrong. Obamacare is a scam. The Federal Government has zero right to take control of Medical care. It's not under the Constitution. One size does not fit all. If it was so great, Obama himself wouldn't be changing the rules every 5 minutes. If the state wants to do it, that ones thing. People have the right to flee it. The federal Government is into a lot of things it as zero right to be in and it continues to grow and grow. Take and Take.
  
  Have you even been to the Web site? It's ALL Leftest agenda on every single story. Hell click on About, a few times saying right there PROGRESSIVE!!! There's only one side, the Leftest Agenda. I am against trying the ban the sign they way they are going about it. If anything, Counter the sign with FACTS.
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  - John Fenderson (profile), 19 Mar 2014 @ 11:49am
    
    Re: Re: left-leaning?
    I'm against Obamacare (but for reasons that you'd probably disagree with), but this:
    
    "The Federal Government has zero right to take control of Medical care. It's not under the Constitution. One size does not fit all."
    
    Just indicates that you don't actually understand what the law is doing. It's not "taking control of medical care" and it's not a "one size fits all" system.
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Anonymous Coward, 19 Mar 2014 @ 9:40am

Lt. Governor...that's like the 'dumber' in Dumb and Dumber isn't it?
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That Bloody Reverend, 19 Mar 2014 @ 9:51am

I'd love to see MoveOn double down with new billboards on the order of "Pick your passion, but hope it's not speech critical of your politicians"
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Anonymous Coward, 19 Mar 2014 @ 10:06am

MoveOn needs to be careful
If MoveOn and their attorneys are very careful here, they should be able to get the Lt. Governor to testify under oath that he used state funds for the benefit of his office, rather than the state. With a few carefully worded questions, they can probably get him to testify under oath that he violated laws about how state funds can be used.
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- Anonymous Coward, 19 Mar 2014 @ 12:13pm
  
  Re: MoveOn needs to be careful
  Guaranteed the local news papers have the Governor Swindal headlines ready to run.
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Rekrul, 19 Mar 2014 @ 2:48pm

Someone should really trademark the phrase "Cease and desist." Then they could sue anyone who sent them a cease and desist notice for violating their trademark.
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Richard Stallman, 8 Apr 2014 @ 11:58am

This lawsuit is based on trademark law. Please don't refer to it as
"IP law", since all that does is drag in other unrelated laws
(copyright, patent, trade secret, publicity rights and more) that
have nothing to do with the issue. It causes confusion.

Avoiding this confusion is as easy as pie: just remember not to use
the term "IP" (except when you mean "internet protocol"). In fact,
you have to go out of your way to cause the confusion. Too bad
so many writers go out of their way.

See http://www.gnu.org/philosophy/not-ipr.html for more explanation,
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- Anonymous Coward, 18 Apr 2014 @ 4:42am
  
  Re:
  Around here it actually represents something that is similar to all of us: "IP law" (encompassing all you mentioned) can be used to stifle criticism. No confusion is intended, except that which you are manufacturing. We talk about "IP law" here a lot. The authors are fully aware that the other laws have nothing to do with this issue. The point remains that all of those laws can and have been used to stifle criticism and have been used by bad actors in nefarious ways.
  
  Even you can agree with that, Mr Stallman.
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