The bone of contention: Courage Campaign’s Prop 8 Trial Tracker logo, which satirizes Protect Marriage’s logo in a gayish kind of way.
In a cease and desist letter sent to Courage Campaign, Browse McDowell’s John M. Skeriotis (this is a big PDF but TOTALLY WORTH IT!), a lawyer for Protect Marriage, claims that the parody logo constitutes trademark and copyright infringement, and is a “counterfeit” mark of Protect Marriage’s logo.
At publication time, the Courage Campaign has refused to back down and change the logo.
Is this a wise move? We checked in with a local lawyer specializing in IP and Trademark issues to see if they thought the suit had any merit. Since the lawyer in question has a day job at a big company, they asked not to be named, and we’re respecting that, but we promise you, they’re To Be Listened To. The lawyer’s response, below:
My overall take on it is that the pro Prop 8 people are stupid and I don’t think they would ultimately win on this argument, but they have a better argument than I would have otherwise given them credit for.
(Protect Marriage does) have a point that it’s a pretty subtle parody — I actually didn’t notice that the trial tracker logo is two women as opposed to a heterosexual couple, so I could theoretically see how people might be confused at first glance.
BUT the anti Prop 8 people (Courage Campaign) have a good point that it’s a parody with some First Amendment protection and I’m hard-pressed to believe that anyone is actually “confused” by this to the point where you’d have enough grounds to sue — you can’t sue for trademark infringement unless people in the real world are confused about which site is which site, and I don’t imagine people going to prop8trialtracker and being like, wait a frickin’ minute, based on that logo, I thought for sure this was going to be an anti gay marriage site!
But on the third hand, the pro Prop 8 people are insane and I wouldn’t put it past them to sue the Courage Campaign just for attention. But on the fourth hand, I don’t think prop8trialtracker should cave on this one either.
I guess if I (was a lawyer who) had to work out a compromise, I’d say “we don’t think anyone is confused by this, but as a courtesy to you, we’ll change the color of the logo from blue to red” or something minor like that.