HORSE OR WHORES? TRADE MARK DILUTION TAKES ON FREEDOM OF SPEECH

Here's a nice item from the Louisville Courier-Journal, Kentucky. State officials are threatening to sue Bart McQueary, of Harrodsburg, for his "satirical" use of the state logo on his website. Last November a horse-head graphic and the phrase "Unbridled Spirit" were chosen as the state's brand logo and slogan. McQueary is using the very same logo on his own website, above the slogan "Kentucky: The World's Largest Whorehouse". The executive director of the state Office of Legal Affairs served a Notice of Infringement to McQueary, alleging violation of federal trade mark law. McQueary refuses to remove the logo, saying it's an exercise of his freedom of speech. The graphic can be seen here and here on sites where McQueary articulates his thoughts on adultery, homosexuality and other subjects.

McQueary said the "world's largest whorehouse" is a reference to the state's "high divorce rate, our divorce and remarriage rate, our infidelity rate, teen pregnancy rate." He said the state cannot legally force him to pull the logo because he does not use it for commercial purposes. He adds:

"It's the satirical use of something. You don't have to get permission for a parody".

The final decision on whether to sue McQueary has not yet been taken. American Civil Liberties Union lobbyist Marvin Johnson and New York trade mark attorney David H. Bernstein (Debevoise & Plimpton) both said McQueary has federal law on his side. Says Bernstein:

"What he is doing is not trade mark infringement. People who are familiar with the logo and who know Kentucky know the state is not saying 'Come visit Kentucky, we're a whorehouse'".

Bernstein and Johnson did however say that the state could sue McQueary for "dilution", which is defined as the unauthorised use of a highly distinctive mark in a way that tends to blur its distinctiveness or tarnishes its image. But the chances that the state would win are slim, they said.

The IPKat looks forward to some sparkling debate on the interface between federal trade mark dilution and freedom of speech. Merpel adds, "McQueary's comments on the citizens of Kentucky give a whole new meaning to the word 'damn-nation'".

More Unbridled Spirits here, here and here