Just yesterday a t-shirt company we make designs for, Skreened, received a threatening letter from ECSA, Inc. Glenburn Maine, founded and apparently still owned by John N. Diamond and Marcia Diamond. You can read the text of the letter here. In it, ECSA uses lawyer Anthony D. Pellegrini of the firm Rudman & Winchell to threaten to drag the nice people at Skreened to court unless the following shirt was removed from sale:
Oh, dear, I can’t show you that shirt image any more, can I? No, because I can’t afford to hire a lawyer to fight ECSA’s lawyer off. That’s how power works in this country.
Now why did ECSA declare that I must remove a t-shirt from sale, a t-shirt that (you’ll have to take my word for it) bore the phrase “Electoral Community College?” Because in 2006, ECSA decided to try and trademark the phrase “Electoral College”:
Word Mark ELECTORAL COLLEGE
Goods and Services IC 016. US 002 005 022 023 029 037 038 050. G & S: Printed certificates. FIRST USE: 20010201. FIRST USE IN COMMERCE: 20010201
IC 025. US 022 039. G & S: Caps; Hats; Jackets; Jerseys; Pants; Shirts; Short-sleeved or long-sleeved t-shirts; Shorts; Sport shirts; Sweat pants; Sweat shirts; T-shirts. FIRST USE: 19951101. FIRST USE IN COMMERCE: 19951101
Standard Characters Claimed
Mark Drawing Code (4) STANDARD CHARACTER MARK
Serial Number 78968051
Filing Date September 6, 2006
Current Filing Basis 1A
Original Filing Basis 1A
Published for Opposition May 1, 2007
Registration Number 3264939
Registration Date July 17, 2007
Owner (REGISTRANT) ECSA, Inc. CORPORATION MAINE 98 Jillian Way Glenburn MAINE 04401
Attorney of Record Anthony D. Pellegrini
Type of Mark TRADEMARK
Live/Dead Indicator LIVE
The phrase “Electoral College” has been in substantive political use since long before John Diamond and Marcia Diamond of Glenburn, Maine dreamed up their trademark plan and used attorney Anthony D. Pellegrini of the law firm Rudman & Winchell to implement it. ECSA and Pellegrini have been busy little bees, shutting down others before trying to shut down us.
It’s a bogus claim. First, we use the phrase “Electoral Community College,” on that shirt, not “Electoral College.” It’s not even the same phrase. Second, we use the phrase “Electoral Community College” in a political parody of the mess of the current inept electoral college system, engaging in Fair Use first-amendment-protected political speech regarding the “primary” meaning of the Electoral College itself… a body and a concept that have existed since well before John and Marcia Diamond of Glenburn, Maine were born, and far before ECSA became an incorporated body. Lawyer Anthony Pellegrini explicitly agrees that political instances of expression are not protected by trademark law, referring to the other case:
In fact, in communicating with CafePress, it was agreed that several “stores” would not be disabled, as the merchandise being offered through them was deemed overtly political.
How much more “overtly political” can you get than a t-shirt placed in a shop that calls itself “progressive”, with the t-shirt explicitly tagged “political” and with a subtitle to the shirt: “political humor t-shirt”?
But hey, never mind that. Just hire a lawyer, and you can make all that rationality and political freedom go away. Poof!