Pick Your Passion: State’s Trademark May Be Used To Criticize Its Governor

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In Dardenne v. MoveOn.org, the Middle Louisiana Federal District Court faced a conflict between trademark protection, on the one hand, and the First Amendment’s protection of political advocacy, on the other.  The Court concluded that trademark law cannot be used to suppress political advocacy, at least in the absence of a compelling need to protect the mark and a demonstrable likelihood of confusion.

The State of Louisiana, through the office of the Lieutenant Governor, had previously registered and used “LOU!S!ANA Pick your Passion” as a trademark for its LA2tourism industry. In 2014, the political advocacy group MoveOn.org erected a billboard next to a Louisiana interstate, which reads “LOU!SIANA Pick your passion!  But hope you don’t love your health.  Gov. Jinal’s denying Medicaid to 242,000 people.”  This was a message of protest against the state’s health care policies, specifically Governor Bobby Jindal’s rejection of Medicaid expansion funding available under the Affordable Care Act (sometimes referred to as “Obamacare”).

Louisiana sued MoveOn.org for trademark infringement, on the theory that the advocacy group should be prohibited from using the state’s own trademark to criticize its governor, and moved for a preliminary injunction. On April 7, 2014, the Court rejected this request.

Louisiana Fails to Clear Court’s Three Hurdles

The Court recognized that Louisiana was effectively asking it to suppress MoveOn.org’s criticism of the state’s public policies, in other words, to suppress political speech at the core of the First Amendment’s protections.  Drawing from First Amendment and trademark jurisprudence, as well as from the traditional preliminary injunction standard, the Court demanded that Louisiana clear three hurdles in order to justify to the suppression of the billboard by preliminary injunction.

First, the Court required Louisiana to “demonstrate that its interest in protecting its service mark from unauthorized use by MoveOn.org is compelling and that the injunctive relief sought is narrowly tailored to achieve that interest.”  The court found no such interest.

Second, the Court required Louisiana to show a likelihood of confusion in the mind of the reasonable consumer.  Louisiana argued that consumers would somehow “be confused into thinking that the Lieutenant Governor, as the alleged owner of the mark, is being critical of the Governor.”  The Court found that this argument underestimated “the intelligence and reasonableness of people viewing the billboard.”  Given MoveOn.org’s obviously parodic message, the Court found it “inconceivable” that a reasonable person viewing the billboard would perceive it as Louisiana’s attack on its own governor.

Third, the Court required Louisiana to show that it would be irreparably harmed if MoveOn.org’s billboard remained.  There was no such showing, particularly in view of the lack of confusion.

Because Louisiana could not demonstrate all, or even any, of these three factors, the Court refused to grant preliminary relief, effectively ruling that MoveOn.org must be permitted to attack the state’s governor with the state’s own intellectual property.  This outcome ensures a broad right to political advocacy, leaving little opportunity for states to leverage intellectual property rights to suppress unpopular speech.

Following this ruling, the Court calendared a scheduling conference to take place in June.  The Court’s rulings thus far suggest that Louisiana’s case faces significant obstacles to success, but there is no word yet on whether the state will nevertheless proceed with its case.

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