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San Francisco Police Threaten Lawsuit Over Pepsi Using Image of Badge Similar To Its Official Badge

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3F14E1A000000578-4393886-image-a-74_1491682205478There has been an abundance of discussion of Kendall Jenner’s “social justice” Pepsi ad that proved a disaster for the company after Black Lives Matter objected that (even though no signs in the commercial referred to BLM) the commercial trivialized BLM.  The commercial showed people marching with signs saying things like “Join the conversation” and Jenner giving a police officer a Pepsi. When I saw it, I just thought it was sappy and shallow.  It was an effort of another major company to sell its product on a social justice theme. Even if you want your Pepsi with a side of social justice, companies want to be praised as having a conscience without actually saying anything controversial or edgy.  To corporate and media officials, Jenner wiping off her make up was a brave and edgy moment. (Apparently a starlet taking off her makeup is a brave and inspiring thing to behold).  The commercial however has raised a legal question that returns to a prior subject discussed on this blog: copyright and trademark laws.  It appears that not only did BLM hate the commercial, so did the police.  The San Francisco Police have threatened a lawsuit stating the image of a badge looks like their official badge, and used without their permission.  Once again, I do not know how we allowed Congress to put us in this place where showing a police badge (or in this case a badge resembling a police badge) can get you sued.

The police department has been a bit vague on the basis for the threatening lawsuit in using its “logo” but the assumption is that it is a trademark or copyright action.  There are some laws limiting the use of such images separate from trademark and copyright.  I would have equal problem with those laws in being used selectively in a case like this one.

Ironically, Pepsi proclaimed that the ad was a testament to its vision of “various groups of people embracing a spontaneous moment … to live life unbounded, unfiltered and uninhibited.”  The police department however made it clear that the company was not nearly as “uninhibited” as it may assume.

We have been discussing a disturbing trend in copyright and trademark claims over things occurring in public or common phrases or terms. (For a prior column, click here). We have often discussed the abusive expansion of copyright and trademark laws. This includes common phrases, symbols, and images being claimed as private property. (here and here and here and here and here and here and here and here and here and here and here). This included a New York artist claiming that he holds the trademark to symbol π. We have also seen an English decision finding that taking photographs of London icons are also violations as well as a claim by the New York Port Authority that it owns the image of the New York skyline.

In this case, the badges simply look alike and the police department is deeply aggrieved and threatening lawsuit.  This is a public department and a badge that is a public symbol. Yet, Congress has repeatedly yielded to the “copyright hawks” who have steadily increased the penalties for copyright and trademark violations, including criminal penalties. Despite the abuse of average citizens by thuggish law firms and prosecutors, the Obama Administration continued to support draconian measures against citizens. The result is that firms may routinely send out these thuggish threats and claim ownership to such things as the skyline of New York city. It is small business and average people who are being victimized because they do not have any comparable lobby in Congress.

What is equally concerning is that the police department can selectively sue of the use of such images depending on whether they agree with the content of commercials or films or publications.  Everyone seems to hate this commercial so they are threatened with a lawsuit.  Would they do the same with a different commercial or message like Police Lives Matter?  The public owns such images and agencies should not be able to sue over the use of such images for expressive speech.  Of course, this is commercial speech but the ability to selectively use trademark or copyright laws is as disturbing as the absurd underlying claim.

Yet, city attorney Dennis Herrera has demanded that a social justice commercial be stopped in the name of trademark justice:  “We’re demanding that Pepsi not run any footage or photos associated with this ad that reference the San Francisco Police Department. If they don’t comply, we will explore all legal options. There is nothing San Franciscan about Pepsi’s ham-handed attempt here to fatten its own bottom line.”

In the end, it did not matter.  The ad went as flat as a one day old Pepsi. The company pulled the ad and apologized to anyone who would listen and begged to be forgiven for trying “to project a global message of unity, peace and understanding.”

However, the company should be careful on how it posts that apology. Specifically, it should not show Jenner making an actual peace sign because Lindsay Lohan appears to claim that image.

 

What do you think?

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