Acadiana Business

Dear Tabasco, if you want a crowd, pick a fight

by Walter Pierce

The world's most famous pepper sauce is hot under the collar with blogger Lamar White over a parody logo. Who will blink first?

[Update: We've chosen to remove the parody Tabasco logo at issue in this story. Lamar White, the blogger pressured by the company to remove the image from his website, has since also agreed to pull it off his Facebook page. A recent status update from him, with which we agree, explains why: "I took down the Tabasco fiasco logo from my Facebook, not because I was intimidated or because I believe it was an actual infringement, but because their lawyer made a compelling and convincing argument about all of the charitable work that the McIlhenny Company has done to support coastal and wetlands restoration causes. The logo was obviously satire, but I understand why the McIlhenny family thinks it's unfair to conflate their brand (even when it's obviously done in jest) with an environmental catastrophe caused by BP. In law and in life, it's important to 'pick your battles' wisely. I'd rather work with the people at McIlhenny to raise awareness for coastal and wetlands restoration than fight over a silly logo."]

Tabasco is threatening legal action against a Louisiana political blogger over his use of a 4-year-old logo that resembles the world-famous pepper sauce's logo while targeting BP over the 2010 Deepwater Horizon explosion and spill.

Lamar White, a law student whose CenLamar website is increasingly becoming a go-to source for searing Louisiana political commentary - Gov. Bobby Jindal is frequently in White's prosaic crosshairs - and his recent use of a Tabasco parody logo titled "FIASCO" featuring Tabasco's familiar diamond-shaped and inset circular design and a similar font got Tabasco's hackles up. White used the image to accompany a story about Gov. Bobby Jindal's questionable decision to sign - against the advice of Attorney General

Lamar White

Buddy Caldwell and scores of legal experts - Senate Bill 469 that aims to kill the New Orleans levee board's lawsuit against 97 oil and gas companies. Tabasco accused White of trademark infringement in a cease and desist letter (The IND, which picked up White's superb piece, "If you care about Louisiana, this should make you livid," got the same letter from Tabasco's attorneys).

C'est what?

As White's reply below to the company indicates, he agreed to remove the logo from his website as a courtesy but is refusing to pull it off his Facebook page:

Dear Ms. Hebert:

Again, as requested and as a courtesy, I have complied with your request to remove the image from my website. My website is not a commercial enterprise. I am not compensated for my work, and I do not accept advertisements. Indeed, I actually pay to keep ads off of my site.

I respect your desire to protect the integrity of your company's logo, and as a seventh generation Louisianian, I have always had great admiration for the McIlhenny company and everything that it does to promote our home. I am also well aware of the company's long history of using the judicial system to aggressively protect its trademarks, a tradition that I now understand carries on today.

That said, I take exception to the assertion that this image is, as a matter of fact, an infringement. As far as I can gather, no court has ever ruled on this particular image. If I am mistaken, please direct me to the proper citation.

Let me be clear: I have absolutely no desire to engage in a protracted legal battle, but as a matter of principle, unless you can cite an appropriate legal authority holding that the image infringes on your registered trademarks, I cannot and will not comply with your request that I remove the image from my personal Facebook account.

As I mentioned earlier today, I did not create the image. I found it in the public domain, where it has existed for more than four years. I do not believe it dilutes the Tabasco brand name, nor do I think that anyone could possibly confuse the image as a Tabasco product. Instead, the image humorously appropriates an iconic logo inherently associated with the State of Louisiana in order to communicate a simple and profound message about the worst environmental disaster in American history. Frankly, it is a message that should particularly resonate with your company.

Again, I removed the image from my website as a courtesy, not because I agree with the assertion that it infringes on your company's trademarks. In fact, I believe the image is manifestly a non-commercial, satirical parody intended as political speech, and as such, it is not an infringement. See Reddy Commc'ns, Inc. v. Envtl. Action Found., 477 F. Supp. 936 (D.D.C. 1979); see also Lucasfilm Ltd. v. High Frontier, 622 F. Supp. 931 (D.D.C. 1985). Considering it has never been used for commercial purposes (t-shirts or posters or stickers), it could also be defined as a political cartoon.

I could cite several other authorities in support of my analysis, but I will spare you. I recommend Callmann on Unfair Comp., Tr. & Mono. ยง 22:61 (4th Ed.) as an instructive and elucidating primer on these issues.

I understand you simply have a job to do, and trust me, I don't take any of this personally. But I hope that you will understand why I will not allow a corporation to dictate the content I share with my friends and family members on social media, particularly without first providing me with appropriate legal citations and authorities. I posted the image again today to provoke a discussion on trademark law, satire, dilution and confusion, and political speech.

I strongly caution against sending private citizens cease and desist letters based on the content of their personal social media accounts.

Again, I am more than happy to listen to your analysis of the law and consult with whatever case law or commentary upon which you are relying to justify your request.

I am hoping, however, that my removal of the image from my website is sufficiently accommodating.

All the best,