When you think of the term “the world’s largest whorehouse” — and who among us doesn’t? — do you think of Kentucky? I guess I just don’t get around enough. The AP Reports on this chap, who preaches the “Gospel Truth” on his website about what a, er, “whorehouse” that big old state is. Natch, the State of Kentucky is threatening to sue him, because he’s parodying their cute little logo, which usually says “Unbridled Spirit.” (Whorehouse vs. unbridled spirit — so different already?)
Bart McQueary, the guy in question is evidently quite a character, though not much of a trademarks man. Neither is the AP reporter or his or her editor: “[McQueary] said the state cannot legally force him to pull the logo because he does not use it for commercial purposes. . . . While McQueary doesn’t appear to be using the logo for profit, ‘he certainly would have needed to inquire regarding permission or authorization prior to use of that mark,’ [a state lawyer] said.”
Not a state trademark lawyer, if there is such a thing. The AP did find one, though — one of the best (and a good friend of the blog), New York’s David Bernstein. “What he is doing is not trademark infringement,” he (correctly) said, according to the article. “People who are familiar with the logo and who know Kentucky know the state is not saying ‘Come visit Kentucky, we’re a whorehouse.'”
Thanks, David. Remember: The test is likelihood of confusion, okay? Ah, but there is the matter of the “commercial purposes” issue, no? Neither McQueary, the AP or the State of Kentucky evidently gets it. Trademark infringement does not require commercial use, strictly speaking. (But see overstatement to the contrary here.) Trademark dilution does (kind of a sore spot with me — but it’s healing!). There’s no dilution claim here because their logo is apparently not registered nor is it likely”famous,” as required by the federal dilution statute.
So McQueary should be okay, at least on the trademark front. He seems to be quite a religious man, though — in his own special way — so it’s a little surprising to read in the AP article that this busy bee is also one of the plaintiffs in one of the Ten Commandments cases. He says, “[H]ow do you think the Almighty feels about [the Ten Commandments] being used as a wall decoration in a courthouse?” Well, actually, that’s a pretty good question.
No, I wouldn’t say McQueary and I are soulmates. (I, for one, gave up my dreams of a pro wrestling career.) But hell, even a broken clock is right twice a day. So too with McQueary. When it comes to the use of powerful symbols to make political statements, we seem to have two small things, oddly in enough, in common. But, I think, probably just those two.
MAIL, WE GET MAIL: McQueary writes in:
Thank you for your insightful commentary on the AP story concerning my website.
Let me first say that my name is not an alias per se (my legal first name is Bartley, but how many people use their legal first names anyway?) Who ever reported that originally in Wikipedia was incorrect.
I also want to point out that [Kentucky’s lawyer] Ellen Benzing also knows what you and Mr. Bernstein know. She just didn’t think that I did. It is called bullying tactics and most anyone else in my position would have gotten that certified letter and [soiled] themselves! This is the original (and best) version of the story by Mr. Greg Kocher as it appeared in the Lexington Herald Leader on the front page, above the fold.
You may want to update your link with this superior story.
Please take care.
He sounds a lot different in email than on his website. Food for thought.