Saturday, March 15, 2014

Does LT Governor Jay Dardenne Have Little Choice But To File Suit Against ?

An interesting legal issue has arisen in Louisiana dealing with a wide diverse list of issues from Louisiana tourism , medicare expansion, the First Amendment , and Bobby Jindal.

At issue is is a billboard campaign that takes aim at Governor Bobby Jindal for not expanding the Medicare program in Louisiana. . The problem is that the billboard campaign pretty much just appropriates a Louisiana tourism campaign in which the State of Louisiana has spent nearly 70 million dollars on. In Louisiana one of the duties of the LT Governor is tourism and this campaign is pretty much under the direction of Lt Gov Jay Dardenne. He has filed suit.

See Louisiana sues over Bobby Jindal billboard .

Needless to say we have a First Amendment issue at stake. Under trademark law courts have under the theory of satire and parody have often sided with the defendants in these cases especially when the plantiff is a Government and/or  political actor. So from the outset it is a tough case for the LT Gov to win. Court's default position seem to be allow such parodies and many ways the burden is on the plaintiff to prove otherwise.

However as one New Orleans attorney pointed out to me this morning the Lt. Gov really has a duty to sue in this case. That is if one does not take efforts to defend your copyright or trademark you in fact might lose the right to it later. As he pointed out there is a problem of laches that Lt Jay Dardenne must deal with for instance  . If the State of Louisiana has spent 70 million dollars on this campaign then the Lt. Gov does seem to have a obligation to defend it in Court. states this lawsuit  " frivolous  " . This is not really an area of law I am familiar with , but I am not sure it is right to say this is  frivolous for various reasons.

 Here is the Lt Gov complaint that was filed in Federal Court on Friday . Among  the arguments the Lt. Governor brings ( see Section 25 ) is that under the law " parody " must deal with the authors work. The campaign deals with Jindal opposition to expanding medicare in the state of Louisiana. The Lt. Governor points out that the Jindal is in no way connected with the tourism campaign which is something that comes under his jurisdiction as an elected official. That is it can't be a parody because Jindal  cannot be in anyway seen as an author of this particular work and effort..

I find this argument at the very least legitimate and thus I don't see the suit as frivolous. Thus the Lt Governor does have a duty on behalf of Louisiana that has spent  70 million so far on campaign to protect to their proprietary interest.  Could use a campaign that promotes Louisiana fruit ( under the direction of the Sec of AG another elected office distinct from the Governor or Executive  ) to parody Jindal. What about another State organ that is acting in the stream of commerce? Could they use a  effective LSU marketing campaign to mimic Jindal on medicare .

I don't know how the Court would rule on all these issues but I expect there is some limitations.