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. He illustrated the post with the logos of Avis and Hertz. The other day, as Turkewitz explains here, he received the following communication as a comment on the original post:
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.
Associate General Counsel
Avis Budget Group, Inc.
Memo to Mr. Turkewitz: Don’t do it! At a minimum, you should demand that Avis’ attorneys send you a proper cease-and-desist letter that spells out the supposed grounds for their complaint. Because notwithstanding its polite tone, this sounds to me like a litigation threat.
I highly doubt there is any valid claim here. Federal dilution liability is almost certainly foreclosed by the categorical exemption for “all forms of news reporting and news commentary.” (Recent revisions to the statute left this exemption untouched.) Federal infringement liability would require likelihood of confusion, which seems far-fetched here. Even if some likelihood of confusion were found, most courts (including New York federal courts operating under Second Circuit precedent) would balance that confusion finding against First Amendment concerns and construe confusion narrowly. I am not intimately familiar with New York law, but I’d be very surprised if Avis could win there either, for similar reasons. Avis’ real grievance may be the implication that the company supported this law that got struck down in the decision described in the post. But then the proper recourse would be to some sort of unfair competition, false advertising, or trade libel claim, and that seems even further-fetched to me.
This incident illustrates yet again how murky trademark fair use doctrine has become. In the paper that is currently taking up most of my time, I argue that the results in decided cases such as these tilt very strongly in favor of defendants. But the murkiness, as well structural problems that increase the costs to defend such suits, mean almost all of them settle, usually with the capitulation of the person using a trademark expressively. Hence my plea to Mr. Turkewitz: don’t do it!
Hat tip: Marty Schwimmer at The Trademark Blog.
[UPDATE: The response to Avis is here -- he asks them to back up their claim. Hooray!]