by Paul Alan Levy
Much like the case of Jeremy Whittaker a few years ago, a demand letter from the general counsel of an elective transit district in the East Bay seeks to interfere with the political campaign of a candidate seeking to replace the lawyer’s bosses. The Alameda-Contra Costa Transit District has threatened Victoria Fierce because her campaign web site violates an ordinance adopted by that municipal body because it contains photographs in which the AT Transit logo can be seen, and because the directors against whom she is running have not authorized her to carry such photos. The photos include two shots of an AC Transit bus and one shot of an AC Transit route sign (such as the image here, also displayed without authorization).
So AC Transit demands that Fierce remove the photos and cease "any other unauthorized use.”
There is a twist on the silly demand letter that Whittaker received from Mesa's outside counsel – instead of expressly alleging trademark infringement, AC Transit relies on an ordinance that purports to make unauthorized use of the logo “unlawful.” Now, I am no expert on California municipal law, but I have not been able to identify any California statute that confers general police powers on a municipal transit district, so that it has any power to make it “unlawful” for a member of the public to display its logo. And even if the District had such powers, the First Amendment would not allow a government body to forbid truthful noncommercial speech that shows a municipal bus or route sign on which a logo is displayed.
So I assume that the agency has in mind to fall back on trademark law to treat the display of the logo as a form of infringement. but the notion that Fierce could be found liable for infringement based on her display of these photos is just as absurd as the notion that AC Transit could proceed against Public Citizen for the graphic that accompanies this blog post.
My letter to AC Transit's General Counsel Jill Sprague explains why Fierce is not going to take the photos down. I invite Sprague and her elected bosses to post a comment justifying their heavy-handed attack on Fierce’s campaign web site.
