A national Democratic group that had been told to stop using University of Arkansas images and references in political campaign mailers said Wednesday that it doesn’t believe the campaign mailers violated a trademark.
However, the Democratic Legislative Campaign Committee said it doesn’t plan to send out any other UA-related fliers between now and Election Day.
Attorney Harold J. Evans of Little Rock sent a ceaseand-desist letter on behalf of the university to the Washington-based committee Oct. 22 ordering it to stop using the university’s trademarked name, image and logo.
A trademark is a word, phrase or symbol that is used to identify the creator of a good or the provider of a service.
The committee responded by letter Wednesday that it does not think the images or wording of the mailer are subject to a trademark dilution claim under state or federal law. The group, which helpselect Democrats to state legislatures across the country, said it has finished its work in Fayetteville.
The mailer in question attacks state Rep. Charlie Collins, R-Fayetteville, who is challenged by Democrat Adella Gray of Fayetteville.
The mailer urges voters to “stand up for the U of A” and includes a cartoon drawingof a Hog and a photograph of the UA campus’s Old Main. It states that Collins voted against increases to the university budget.
“With a political campaign, it definitely raised the issue of endorsement of a particular candidate which the university cannot do,” Evans said. “The university does notwant to be in the position of being partisan, it’s a publicly supported institution.”
Dan Roth, Democratic Legislative Campaign Committee spokesman, said he doesn’t think the mailer confused or misled people.
“I think the mail piece lays out some factual votes that he took, and it’s very clear that he doesn’t want to stand by those votes,” Roth said. “This is about a decision to cut funding to the University of Arkansas and the impact it has on the families of Arkansas.”
The ad criticizes Collins for not voting on the 2012 Revenue Stabilization Act, for voting no on a 2012 bill to create after-school youth programs and for voting in 2011 to cut the size of lottery scholarships.
Evans said that beyond sending the letter there might not be much the university can do.
“The problem is the timing. Since the election is Tuesday, it will be difficult to seek an injunction or a hearing for an injunction,” he said. “We definitely want to ensure there are no further mailings and put them on notice thatin the future this should not be done.”
Evans said it isn’t clear if the mailing is still circulating.
He said the university is also worried about protecting its trademark.
“The marks lose their value if anyone is allowed to use the trademarks without any permission or control by the university,” Evans said. “The university is very aggressive about protecting its trademark rights because if you don’t protect them, you lose them.”
Wednesday’s letter from the Democratic Legislative Campaign Committee states that the cartoon hog on the mailer is “a commercially acquired image that was distinct from the university’s actuallogo.”
Roth said the hog illustration is a stock image purchased online.
Evans said the image doesn’t have to be an exact replica of the university’s logo to create “likely confusion” under the federal Lanham (Trademark) Act.
The letter also states that the mailer discussed legislative issues and wasn’t commercial.
The mailers “supported specific proposals to strengthen state education funding, including for the University of Arkansas, and criticized opposition to these proposals,” the letter states.
It points to Arkansas Code Annotated 4-71-213(c)(2), which states that an injunction cannot be sought for noncommercial use of a trademark. It also points to a 2002 federal case, Mattel, Inc. v. MCA Records, Inc., over the use of the Barbie doll trademark in a song by Danish group Aqua titled “Barbie Girl.” A court ruled that use of a trademark for advertising, noncommercial reasons and in news reporting are all defenses against a dilution claim.
Evans said the committee could have referred to Collins’ voting on educational issues another way.
“They could have done that without referencing a political institution or using its trademarks,” he said. “They made specific reference to the University of Arkansas, with Old Main and with a red razorback head.”
The university has been inthis position before.
During the 2010 campaign of Republican U.S. Sen. John Boozman of Rogers, he released an ad pointing out that he used to play offensive line for the University of Arkansas in the early 1970s.
“Coach Frank Broyles didn’t ask for much,” Boozman said in the ad. “He asked for everything. This is where I learned to stand my ground, hold the line. That’s exactly what I’ll do in Washington.”
The ad was apparently filmed outside the UA stadium. It showed a photograph of Boozman as a football player and a red jersey and a Razorback helmet.
B oozman voluntarily pulled the ad while the university was investigating whether he had permission to use the logo and school name.
The University of Arkansas isn’t the only school to distance itself from political candidates in 2012.
Virginia Tech grumbled this fall, The Associated Press reported, after spotting “Hokies for Romney-Ryan” bumper stickers. The school, whose athletic team is the Hokies, sent letters to Democratic and Republican officials, warning them that the word “Hokie” is trademarked and that the school’s trademarks can’t be used by any candidates.
Front Section, Pages 1 on 11/01/2012