Liberty Maniacs, a Minnesota-based
"independent brand that designs and sells some of the world's favorite political and satirical apparel and merchandise," was served with a notice of infringement last week from Garvey, Schubert, Barer, the legal firm officially representing Bernie Sanders' presidential campaign.
At issue is a T-shirt (which was unveiled last November) featuring the democratic socialist senator from Vermont beside some other socialist icons, namely philosophers Karl Marx and Freidrich Engels and their dictatorial admirers Vladimir Lenin, Joseph Stalin, and Mao Zedong, positioned over the words "Bernie IS MY COMRADE." The word "Bernie" appears to be in the same font as the official Bernie 2016 logo, and the parody design also apes the campaign's use of two wavy lines beneath the candidate's name.
Liberty Maniacs founder Dan McCall told Reason in a phone call today that taking the five-point star that appears above the letter "i" in the "Bernie" logo and altering it to make it resemble the revolutionary communist red star is a classic example of parody, which is protected by the First Amendment.
Here's how Liberty Maniacs pitched the plainly satirical T-shirt to customers on its Facebook page:
With the lovable personality of a drowsy badger and the voice of a bullfrog, Bernie is your comrade in fighting the good fight against oligarchical imperialism, exploitative corporatism, economic logic, electoral probability, male pattern baldness, Clintonian coronation, and whatever other Sisyphean task you can shake your fist at.
This shirt includes a pantheon of socialist paladins just to confuse, fascinate, and cause the finger-wagging, nitpicking partisan to hilariously instruct upon the proper definition of socialism while everyone within a five foot radius rolls their eyes in aversion.
Claire Hawkins, one of the lawyers from Garvey, Schubert, Barer, penned the letter demanding Liberty Maniacs "cease and desist" and "destroy and/or take offline all materials" bearing the Bernie 2016 official logo. Hawkins added:
As an intellectual property owner, our client is obligated to take steps to protect its trademark and copyright rights and to protect the good will built up in its name and brand.
McCall's attorney Paul Levy replied to Hawkins in a letter published online, in which he accused the firm of "trademark bullying":
It is your contention, apparently, that an ordinary and reasonably prudent consumer would tend to be confused about whether it is the Sanders campaign that is promoting Sanders' candidacy by associating him with the 19th century theoreticians of the communist movement as well as with three ruthless Communist Party dictators.
That contention is absurd. You cannot use trademark theories to silence members of the American public who disagree with your client's views and oppose his candidacy.
McCall told Reason that his past experiences of legal fallout when satirically "punching up" at powerful figures and institutions like the National Security Agency (NSA) and Hillary Clinton have imbued in him the understanding that the "legal shorthand to determine if something is a parody" regarding trademarks is "if a moron in a hurry can recognize it's a parody, it's a parody" and not copyright infringement.
By contending that "potential [Sanders] supporters could be confused" by the "Bernie is My Comrade" shirts, McCall says the firm is essentially saying that Sanders supporters are "idiots." McCall added, "If the Sanders campaign is giving these lawyers carte blanche to run roughshod over people's First Amendment rights, that's an issue."
This isn't the first time Garvey, Schubert, Barer have played hardball over the use of the Bernie 2016 logo. This past January they ordered Wikipedia to remove Sanders' campaign logos from their website under the Digital Millennium Copyright Act (DMCA).
Reason reached out to Garvey, Schubert, Barer, as well as the Sanders campaign. Neither was immediately available for comment.