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[wg-b] Brenda Sandburg: Boalt Professor Masters Possibilities in Nader Suit

Thanks to all who passed on suggestions regarding trademark council.   


Subject: [Random-bits] Brenda Sandburg: Boalt Professor Masters
Possibilities in Nader Suit
   Date: Wed, 06 Sep 2000 10:42:51 -0400
  From: James Love <love@cptech.org>
    To: Multiple recipients of list RANDOM-BITS

Berkley law professor Mark Lemley and the law firm Fish and Richardson
are defending the Nader presidential campaign in the law suit filed by
Mastercard over its "priceless" trademark claims.   This stands to be an
important case from a free speech point of view.  Jamie

Page printed from: http://www.law.com 

Boalt Professor Masters Possibilities in Nader Suit 
Brenda Sandburg
The Recorder 

September 6, 2000 

When Boalt Hall School of Law professor Mark Lemley got a call from
Green Party presidential candidate Ralph Nader recently, he found a
cause he could support. 

Nader wasn't calling for donations to his long-shot campaign. Instead,
he was seeking legal representation in a trademark infringement suit
filed against him by MasterCard International Inc. after Nader put out a
campaign ad that is a send-up of a famous MasterCard commercial. 

Lemley, a well-known copyright scholar, saw an important legal principle
at stake and agreed to represent Nader pro bono. 

"It would be a bad precedent to be enjoining political ads on the basis
of trademark claims," Lemley said. It's important that the law allow
"for both humor and politics and IP not take it over." 

Although Nader's television ad elicited chuckles around the country,
MasterCard claimed the candidate's 30-second spot infringes its
trademark advertising campaign. 

In MasterCard v. Nader 2000 Primary Committee Inc., filed in the U.S.
District Court of the Southern District of New York, the company
requests an injunction against the ad and damages in excess of $1

A hearing on the case is scheduled before Judge Richard Casey on Sept.

A court brief says the ad is "core political speech." Further, the brief
says the spot is clearly a parody of MasterCard commercials and thus
protected, expressive speech. 

"This is the first time anyone has tried to enjoin a campaign ad in the
middle of an election," says Lemley, who is also of counsel at Fish &

The Nader promo, which began airing last month, spoofs MasterCard's
well-known "priceless" commercial. Like MasterCard's ad, Nader's TV spot
depicts a series of items and the cost of each. The ad reads: "Grilled
tenderloin for fund-raiser: $1,000 a plate.  Campaign ads filled with
half-truths: $10 million. Promises to special interest groups: over $10
billion. Finding out the truth: priceless." 

The ad concludes: "Without Ralph Nader in the presidential debates, the
truth will come last." 

MasterCard's commercials, which began running in 1997, each conclude
with an intangible item (e.g., "an evening with your husband") with the
voice-over: "There are some things money can't buy. For everything else
there's MasterCard." 

In addition to infringing its trademark and copyright, MasterCard says
Nader's ad misleads consumers into believing that the company is
connected with his presidential campaign. 

Nader dismisses this reasoning. "It seems quite clear that everyone
except MasterCard 'gets' the joke," a court brief by Lemley and others
at his firm states. "Virtually all the news commentary on the ad
comments on the ironic juxtaposition of Nader 2000's ad with
MasterCard's campaign." 

MasterCard contends, however, that the Nader ad is commercial speech
rather than parody. 

"There is a major difference between a spoof -- as Jay Leno, David
Letterman and Saturday Night Live" have done in takeoffs on the ad, and
the promotion of a product, said Chris O'Neill, MasterCard's vice
president of global marketing communications. "Nader is doing the ad to
promote his candidacy" and get consumers involved in his campaign. 

But Lemley contends the ad has no commercial use. "If Visa ran this ad,
they'd have a legitimate complaint," Lemley said. "But Ralph Nader is
not Visa."

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James Love  mailto:love@cptech.org http://www.cptech.org
Consumer Project on Technology, P.O. Box 19367, Washington, DC 20036
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