It has been more than a year since he popped off "Fuck em - they're just mercenaries". That still upsets me. Regardless of my distaste for empire-building, unilateral war, or mercenaries... they're people, dammit. They have families that had to endure hearing that. Anyone with class would never forget that.
While he's made insensitive/distasteful remarks since, they've never hit that level. But today, he comes close, calling a progressive icon an asshole. Markos has flown off the handle about Garrison Keillor filing Cease-and-Desist paperwork on some nimrod who made a T-shirt that said "Prarie Ho Companion". Between bragging about his taking law classes and being invited to teach a media law class at Boston U (I'd wager because of this blog), Markos ratchets up his 'cred, then face-plants in front of a large (and growing) bipartisan crowd.
Face-plants?!
Yep. Ten seconds of googling 'trademark parody protected' came up with a detailed brief (by a law firm that specializes in Intellectual Property cases) that shows how badly. Click the link, or if a 7-page brief isn't your style, read my recap below the flip.
According to the authors, Lott & Hutton:
A parody which calls to mind the original, but then relates the original to matter which is in any manner distasteful, is also inherently dangerous.
Humor at the expense of the trademark owner, that assaults the wholesome image of a product has, in most cases, been unsuccessful in court. The offensive nature of the parody in this context has turned into an important factor in denying the defense of parody.
They give 3 examples, ranging from an insecticide slogan based on juxtaposing Bud and bug, which might be distasteful to beer-swillers, to Debbie-Does-Dallas and Hasbro's Candyland vs. Candyland.com (a porn site). All three of these parodies lost.
Next, there's no question (aside from Markos) that this guy dilutes a famous trademark with his knock-off. Back to brief,
a parody must be clever enough to avoid dilution of "famous" marks... In any event, the anti-dilution laws protect marks from two forms of injury: blurring of the distinctiveness of the mark and therefore its advertising value; and tarnishment, actually damaging the reputation of the mark by connecting it with an inferior product or showing it in a distasteful light.
A few more quotes that seemed on-point:
Based in part on survey evidence, the court found a likelihood of confusion among consumers that the [Mutant of Omaha] products were in fact approved or authorized by Mutual of Omaha as a statement against nuclear weapons. The court held that there could indeed be confusion that Mutual of Omaha was behind the anti-nuclear protest.
Survey evidence showed that some people were confused. Anyone wanna take a bet on some randomly-selected people thinking this is unfunny and blaming Keillor? I wouldn't.
i. a parody must be clever enough to avoid a likelihood of confusion. If the parody calls the original to mind, but doesn't adequately distinguish it, the result is trademark infringement. No amount of wit or humor will save a parody which is likely to cause confusion.
Clever enough? Not by half.
The brief also mentions blurring (the gradual whittling away of a trademark's identity by it's use on noncompeting goods), tarnishment (when something like ho is linked to a folksy mom-n-pop trademark), right-of-publicity, the overlap into copyright law and first-ammendment law considerations. IANAL, but these either go up the middle or break in Keillor's favor.
So, let's ignore the difference between Cease-and-Desist and lawsuit, forget your glossing over the difference between 'blogger' and 't-shirt seller', disregard Keillor's career contribution as a progressive/liberal, toss aside the distasteful association of 'ho' with what most consider to be a wholesome trademark, and the level of hyperbole you're exhibiting vs. the measured response that seems to have been how Keillor's attorney handled this.
In fact, let's just concentrate on the above legal analysis, and throw in Keillor's risk of losing a Trademark by not agressively protecting it.
And then tell me how exactly is it obvious that Keillor is being an asshole here. 'Cuz I don't see it.