With all of the Notices of Claim and Open Meeting Law complaints pending against the Town of Fountain Hills arising out of the unconstitutional acts of the Town Council, the Park Place debacle, and Jennifer Wright’s ineptitude, you would think that the last thing she and Gerry Friedel would be looking for is more litigation. And yet, they appear to be doing just that. On March 10, Wright, who appears to be as clueless about intellectual property law as she is about municipal governance, issued a “cease and desist” letter, threatening to sue Council candidates for their purported unlawful use of the Town seal and logo in their campaigns.
In that letter, Wright warned candidates that if they use an image that is “substantially similar” to either the Town’s seal or logo, “their continued use on campaign materials may result in legal action.”
Both the Town seal and logo incorporate graphic images of the Town’s iconic fountain, Currently, two candidates for Town Council, Ben Larrabee and Catherine Mirick, have incorporated graphic images of a fountain into their campaign ads. Neither of these images could be confused with the Town Seal or the Town logo. But the Council candidates are not the target.
With this “shot across the bow,” Friedel and Wright hope to intimidate Brenda Kaliviankis, Friedel’s opponent, with the threat of their litigious wrath to generate negative publicity for her campaign and force her to incur the cost of revising and reissuing her campaign ads and literature.
Litigation brought against Kalivianakis is likely to be met by a counterclaim that could be very costly for the Town and further damage its reputation. The Kalivianakis logo bears no similarity to the one-dimensional Town seal. In contrast, the Town logo is a stylized, multicolored graphic featuring a sun and mountains behind the silhouette of a fountain. The Kalivianakis logo uses variations of red, white, and blue and does not include the sun or the mountains. The logo does, however, incorporate a minimalist outline of the base of the fountain like that found in the Town’s logo, but with a significant difference in the spray, which in the Kalivianakis logo spills to form the letter ”K.”
The town can trademark its specific artistic rendition of the fountain, but to succeed in an infringement claim the replication must be exact. More importantly the core of trademark law is preventing “consumer confusion.” Here, to prevail the Town would need to prove that a reasonable voter looking at the Kalivianakis logo, featuring a similar outline of the base of the fountain, would believe that the Town is officially endorsing her candidacy. Is that likely?
In addition, the courts are extremely hesitant to allow government entities to use trademark law to suppress the speech of political challengers, a First Amendment violation. This act of sending a cease-and-desist letter during a campaign is likely to be viewed by a court as a strategic move designed to further Friedel’s political goals by forcing his opponent to spend money on new signs and flyers and create negative publicity for her. Think, “Fountain Hills sues Kalivianakis for stealing the Town’s logo”!
This strategy is likely to backfire once again, putting the spotlight on Jennifer Wright and her cozy relationship to Friedel. Wright is using her time (funded by taxpayers) to send a cease-and-desist letter to Friedel’s political rival. Arizona law prohibits the use of Town resources (including staff time) to influence the outcome of an election. A.R.S. § 9-500.14
If she pursues thismatterWrightis also inviting an ethics complaint. As a sitting councilwoman, Kalivianakis is a “constituent member” of Wright’s client, the Town of Fountain Hills. Threatening litigation against a councilmember, to benefit a political ally, creates a significant ethical conflict of interest.
Could the Town succeed in an infringement claim against Kalivianakis and her use of the silhouette outline of the fountain’s base? Probably not. A court is not likely to find that the use of that one isolated element in the logo would lead anyone to believe that the Town of Fountain Hills is backing Kalivianakis in her bid to succeed Friedel.
Which leads to the question we should be asking: “How would it serve the taxpayer’s interest for the Town to sue Kalivianakis?”
Kalivianakis almost certainly has personal liability coverage that would pay for her legal defense. In contrast, the amount paid to retain trademark counsel to issue a formal opinion, draft a complaint, and pursue litigation would come directly out of the Town’s budget: our tax dollars. Will Friedel and Wright stand down? Probably not. But if they cared more about the interests of residents than they do about Friedel’s reelection, they would.
