Non-governmental use of Government mark in social media parody

[RangerDan]

Hi there,

A few months ago I created a parody Twitter account affectionately poking fun at a beloved US government institution. At first glance, the account is designed to look like one of the institution's own Twitter accounts, but it is very clearly labelled as a parody and to the best of my knowledge no one has ever mistaken it for the genuine article. As the account has grown in popularity, it has inevitably come to the attention of the institution itself.

Earlier today, I was contacted by an individual on behalf of the institution who explained to me that the institution has an issue with the account - not with the account itself or its content but with the misappropriation of its logo as the account's profile photo. The message I received was very cordial, not at all litigious (yet) and the impression I received was that they'd be happy as long as the logo was removed. I checked on their website, which has the following to say:

The ------------- symbol is the official insignia and registered mark of the ---------------. As such, it is protected by trademark laws and by 18 U.S.C. § 701, which provides for criminal penalties against non-governmental use of Government marks and other insignia. The -------------- symbol may not be used without prior written permission from the Director of the ------------------.

This seems pretty cut and dry to me. I'm not married to the logo and it can be easily replaced with something else, so I will probably replace it just to keep the peace. I was wondering though, whether the fact that the account is a parody and is clearly labeled as such has any bearing here. It's a slightly different situation from say a rival hotel chain adopting a lookalike Best Western logo to dupe unsuspecting guests. I'm not profiting from the account in any way. Also worth mentioning is that the centrepiece of the logo has been completely changed to something pretty ridiculous to make confusion even less likely.

Thanks in advance for any advice. Apologies for the cryptic nature of my post, but if I named the institution in question, it would give away the name of the account and I don't want this to be misconstrued as spam.

 

[Silverplum]

What is the name of your state (only U.S. law)?

Try again, but don't use the "Preview" function: it likes to eat posts.

 

[Silverplum]

While I'm here, based on the title of your post:

What you will find, regardless of which department (state or federal) you are planning to satirize, is something very like this: http://www.iowadot.gov/logo_use.html.

The Iowa Department of Transportation’s (DOT) logos, logotypes, signatures, service marks, trademarks, trade names, and design marks (“logos&#8221 are valuable assets that the State of Iowa must protect.

Remember that you are generally not allowed to use Iowa DOT logos unless you are specifically licensed or authorized to use them. If you wish to use an Iowa DOT logo, please forward your request to [email protected].

Your request should include:
•A brief written summary setting for: (a) your name and your company’s name; (b) contact information, including phone number, fax, E-mail address, and mailing address; (c) the specific Iowa DOT logo you wish to use; (d) a description of your proposed use of the logo, including why you want to use the logo, where the logo would appear, the duration and geographical extent of the proposed use, how the logo would be displayed relative to your corporate name and logo, and whether the Iowa DOT’s logo would be one of various logos appearing; and (e) a description of the Iowa DOT’s involvement in any program or project in association with which you propose to use the Iowa DOT’s logo.
•A mock-up or sample drawing showing your proposed use.
Following submission, the Iowa DOT will evaluate the request and contact you if additional information is necessary. You will then be notified whether the request is approved. The normal turnaround time for such requests is one week. If approval is granted, you will be sent formal written authorization to use the logo, electronic artwork and usage guidelines where appropriate.

======================

I'd venture to say the answer to your question is NO.

 

[RangerDan]

Try again, but don't use the "Preview" function: it likes to eat posts.

Fixed. Thank you.

 

[Silverplum]

Fixed. Thank you.

You're welcome.

And yes, you must remove all logos and the like from your site.

 

[OHRoadwarrior]

That said, you can likely make a parody logo. Submit that to the agency for approval.

 

[justalayman]

I was wondering though, whether the fact that the account is a parody and is clearly labeled as such has any bearing here. It's a slightly different situation from say a rival hotel chain adopting a lookalike Best Western logo to dupe unsuspecting guests. I'm not profiting from the account in any way. Also worth mentioning is that the centrepiece of the logo has been completely changed to something pretty ridiculous to make confusion even less likely.
.

profiting from the site has nothing to do with whether it is infringing or not.

If you are not using their logo, then you are not using their logo. In one sentence you say you are. In another, you say you are not. Which is it? You may find that some portion of the entire mark is also viewed as a protected mark itself. McDonald's and the golden arches is an example. The entire name McDonald's is a TM but so is the golden arches are also a valid tm themselves.

 

[ecmst12]

The question is not whether a court would find you to be infringing. The question is whether you have thousands of dollars laying around to fight the government in court. I suspect the answer to that is No. Take the logo down.

 

[Just Blue]

The question is not whether a court would find you to be infringing. The question is whether you have HUNDREDS OF thousands of dollars laying around to fight the government in court. I suspect the answer to that is No. Take the logo down.

Fixed that for you!!

 

[RangerDan]

Looks like I came to the right place. Thank you for all the relevant info. Much appreciated.

 

[quincy]

Hi there,

A few months ago I created a parody Twitter account affectionately poking fun at a beloved US government institution. At first glance, the account is designed to look like one of the institution's own Twitter accounts, but it is very clearly labelled as a parody and to the best of my knowledge no one has ever mistaken it for the genuine article. As the account has grown in popularity, it has inevitably come to the attention of the institution itself.

Earlier today, I was contacted by an individual on behalf of the institution who explained to me that the institution has an issue with the account - not with the account itself or its content but with the misappropriation of its logo as the account's profile photo. The message I received was very cordial, not at all litigious (yet) and the impression I received was that they'd be happy as long as the logo was removed. I checked on their website, which has the following to say:

The ------------- symbol is the official insignia and registered mark of the ---------------. As such, it is protected by trademark laws and by 18 U.S.C. � 701, which provides for criminal penalties against non-governmental use of Government marks and other insignia. The -------------- symbol may not be used without prior written permission from the Director of the ------------------.

This seems pretty cut and dry to me. I'm not married to the logo and it can be easily replaced with something else, so I will probably replace it just to keep the peace. I was wondering though, whether the fact that the account is a parody and is clearly labeled as such has any bearing here. It's a slightly different situation from say a rival hotel chain adopting a lookalike Best Western logo to dupe unsuspecting guests. I'm not profiting from the account in any way. Also worth mentioning is that the centrepiece of the logo has been completely changed to something pretty ridiculous to make confusion even less likely.

Thanks in advance for any advice. Apologies for the cryptic nature of my post, but if I named the institution in question, it would give away the name of the account and I don't want this to be misconstrued as spam.

I agree with the others that removing the logo is the least expensive, and probably smartest, action for you to take. Without a lot of money or the support of an organization with a lot of money, you could find yourself on the losing end of a trademark or, if the logo is copyright-protected as well, copyright infringement lawsuit.

HOWEVER, and with that said, there is some legal precedent in support of your use of a government logo for the purposes of social commentary or parody. Trademark law, under which most logos are rights-protected, centers on consumer confusion, with concerns also as to the dilution of the mark.

Two cases that come to mind are over the use by environmental activists of the National Forest Service's Smokey the Bear trademark and logo.

In 1992, LightHawk, a conservation group, sued the National Forest Service after receipt of a cease and desist letter, which contained threats of an infringement suit and up to 6 months in prison and $150,000 in fines. The suit centered on LightHawk's use of Smokey the Bear in anti-Forest Service advertisements.

The Court in LightHawk said: "..the satirical use of Smokey the Bear to criticize Forest Service management techniques is unlikely to cause confusion or to dilute the value of Smokey the Bear to help prevent forest fires. Thus the Forest Service cannot have a compelling interest in prohibiting such use."

More recently, there was receipt of a similar cease and desist letter by an "Occupy Wall Street" artist and environmental activist over her use of Smokey the Bear in anti-fracking material. There was a similar threat to cease or face prison and fines.

Now, in LightHawk, LightHawk had The Sierra Club's Legal Defense Fund to finance the suit. To my knowledge, no group has stepped forward to assist Occupy's Lopi LaRoe, but the government has not seemed all that anxious to move against her by filing suit. I imagine you, RangerDan, do not have the same sort of financial support for your government parody as LightHawk had or that LaRoe may eventually need.

Parody is tricky in that it is a defense to infringement and not a legal right to use another's rights-protected material. It is up to the court to determine whether a use is a parody or not and, therefore, an "excusable" use of another's rights-protected material.

If, however, you feel that you, your parody and your use of the government logo to further the parody, are strong enough to withstand a fight with government lawyers should they decide to pursue the matter, you could potentially have a case worth pursuing. Unlikely, perhaps, but possible.

For that reason, and if you really don't want to take the easy and cheap route and simply remove the logo, you might want to have all facts reviewed by an attorney in your area.