Dardenne v. MoveOn.org [1]

MoveOn.org is a public policy advocacy group and political action committee. On March 4, 2014, MoveOn.org caused a billboard to be placed along an Interstate Highway in Louisiana. This billboard was meant to draw attention to a political statement directed at the Office of the Governor of Louisiana. The billboard also contained a photograph of a crawfish taken from the Louisiana Department of Culture, Recreation and Tourism's ("Department") website.

The Department issued a cease and desist letter claiming that the billboard contained a substantial and colorable imitation of a state service mark created, trademarked and used by the Office of the Lieutenant Governor of Louisiana. MoveOn.org then began running a television advertisement that included a photograph of the Billboard and posted a YouTube video of the commercial. Thereafter, Jay Dardenne, in his official capacity as Lieutenant Governor of the State of Louisiana and commissioner of the Department, filed a complaint [2]against MoveOn.org alleging violations of Louisiana and federal trademark laws. Specifically, Dardenne cited violations of:

1. La. R.S. 51:222
2. La. R.S. 51:223.1
3. 15 U.S.C. § 1051 et seq.

Dardenne moved for a preliminary injunction [3], arguing that the television commercial and YouTube video constituted trademark infringement under Louisiana and federal trademark laws because the imitation of the service marks, together with the photograph taken from the Department's website, was likely to cause confusion or mistake as to the origin of the message of the billboard. Dardenne further asserted that infringement of the service marks by MoveOn.org did not constitute a protected parody claiming that the subject of the billboard, Governor Bobby Jindal, was not the creator of the service marks. Alternatively, Dardenne claimed that MoveOn.org was utilizing more of the service marks than was necessary to achieve its parody so as to suggest affiliation, sponsorship, or endorsement of the billboard by the Office of the Lieutenant Governor.

In its memorandum in opposition [4] to the motion for preliminary injunction, MoveOn.org stated that the law allows trademarks to be used for parodic purposes. Furthermore, MoveOn.org argued that to establish infringement under both federal and Louisiana law, plaintiff must prove a likelihood of consumer confusion. MoveOn.org claimed that the plaintiff could not do this because no reasonable person viewing the advertisement, which was harshly critical of the state, could believe the billboard was conveying a message from the state itself. MoveOn.org also argued that its use of a modified version of the service mark was strongly protected because it was an expressive use for non-commercial purposes and that the service mark belonged to the State of Louisiana, which was the target of the parodic use.

On April 7, 2014, the court ruled [5] that the plaintiff had not demonstrated a substantial likelihood of prevailing on its burden of proving a likelihood of confusion among viewers of the billboard. Furthermore, the court concluded that the plaintiff had failed to demonstrate a compelling reason to curtail MoveOn.org's political speech in favor of protecting of the State's service mark. Finally, court concluded that the plaintiff failed to demonstrate that injective relief was required to ameliorate irreparable injury. Accordingly, the motion for a preliminary injunction was denied.