To: Fred Grumman, Associate General Counsel, Avis Budget Group, Inc.
Dear Mr. Grumman:
I had used an Avis trademark on September 17th to discuss a decision holding the Graves Amendment unconstitutional. That amendment, which I believe Avis fought for, granted immunity to car rental and leasing companies from state laws that would hold them vicariously liable when the renters/lessors were negligent and injured someone.
On October 23rd you wrote to me on behalf of Avis in the comments section of that post, to complain about my use of the Avis trademark, which is shown here in the upper, right corner.
So here is my response. I do it publicly, since that is how you chose to contact me.
In writing this blog and engaging in citizen-journalism, I often use the trademarks of companies when discussing their news. That seems to be a pretty clear First Amendment right.
In your letter to me you sought to trump my First Amendment right when you wrote:
We have the greatest respect for your right to express your opinions on your blog, but that does not include the right to use Avis’ trademark as you have done in this particular piece.
Understandably, trademark law is not within your area of expertise. Therefore, we trust that this was done out of ignorance and not based on an intent to misuse our mark to the benefit of your personal injury practice.
We ask that you remove it immediately and refrain from any similar use in the future.
Having thought about the issue, and discussed it privately with some, and seen public comment from others (see the comments section here, as well as at Trademark Law, 43(B)log, and Bill McGeveran), I am at a loss to figure out exactly how your trademark claim trumps my free speech rights. Since, as you believe, trademark law is not within my area of expertise, and that I am simply ignorant, perhaps now is the time for you to set forth exactly how and why I should surrender my constitutional rights to your company.
So send me a proper cease and desist letter. Set forth for me with specificity your claims of legal superiority. You now have the opportunity to demonstrate your expertise and analysis in this arena since I, as you indicate, am simply too ignorant to know it myself.
Until you do that, however, I will assume your threat is an empty attempt to bully and intimidate. And so, the mark remains on my original post.
Yours,
Eric Turkewitz
(Just a simple personal injury attorney, not a trademark law guru)
P.S. I note that your trademark is now popping up on other legal blogs, so you might want to consider sending cease and desist letters to other attorneys as well.
Links to this post:
ladybugs on my mind
[sccl] i did not go to bed planning to think — much less write — about ladybugs today. but a segment of naturewatch, which was playing in the background on my local public radio station this morning has placed that famous genus of …posted by David Giacalone @ November 13, 2007 12:46 PM
ding dong – avis calling
it’s turning out to be a bit of an ip week… bill mcgeveran reports on avis, the car hire people, and their utterly unreasonable legal letters to blogger eric turkewitz (of the ny personal injury blog, mentioned in my blawg review …posted by Daithí @ October 30, 2007 1:22 PM
avis contests law blogger’s fair use of logo
last month, law blogger eric turkewitz of the new york personal injury law blog published this post about a judicial decision overturning a federal statute that’s relevant to liability of rental car companies. …posted by William McGeveran @ October 29, 2007 2:07 PM
Nice job. I think that trademark rights should be protected, but when trademark bullies come riding in, I like seeing a guy like you give them a quick elbow to the teeth.
What a condescending prick that guy was in the first place. You’re just a “mere PI lawyer,” so you probably didn’t know any better.
I certainly won’t be choosing Avis the next time I need to rent a car.
Dear Mr. Turkewitz,
I am not a trademark attorney, either. In fact, I’m not even a lawyer!
I do, however, have a similar (and very amusing) story regarding a “cease and desist” letter I received several years ago from Energizer Corp., the trademark holders of “the Energizer bunny.”
I was a graphic designer, living in Omaha, NE, at the time, with a very successful REALTOR® as a client. I designed an ad with a cartoon bunny beating a drum with my client’s face on it. The headline above read, “He just keeps selling and selling and selling…” –an obvious parody of the Energizer bunny “…he just keeps going and going” ad campaign.
Shortly after publication my client and I received a tersely worded “cease and desist” letter from an Energizer attorney. I felt our depiction of the Energizer bunny safely fell under the umbrella of parody and thus did not constitute an infringement, though clearly used for promotional purposes. As it happened, a friend of mine is a trademark and patent attorney, and he graciously agreed to research the case.
The hilarious conclusion to this story is that my friend’s research revealed the genesis of the Energizer bunny was, in fact, a parody of an earlier Duracell commercial (a competing battery manufacturer, for those unfamiliar) which featured an enormous pile of rabbits beating drums that slowly stop as their batteries lose power until only one remains working. Duracell brought suit against Energizer for their parody of that commercial (viz., the “Energizer bunny”) and the case actually went to trial.
Duracell was roundly defeated.
So the moral of this story in relation to your own experience is that the memory of corporate trademark attorneys appears to be quite short. What’s certain is that it does not date back to the inception of the Constitution.
Regards,
Mark Hartman
Sammamish WA
Mark:
Great story!
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