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

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

LA1In 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.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Trademark, Copyright & Unfair Competition | Attorney Advertising

Written by:

Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Foley Hoag LLP - Trademark, Copyright & Unfair Competition on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.