Friday Gallimaufry

May 17, 2013
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Trademark-Symbol_32.png.pagespeed.ce_.h_Xo14X3IeOdds and ends to end an odd week.

Maybe “Natural State Compact”?  You might have heard about a dispute between Arkansas State University and the Bill Halter campaign over the use of the phrase “Arkansas Promise.”  Long story short, as part of his platform, Halter has started talking about the “Arkansas Promise” as a program he wants to institute where anyone who graduates from a public high school in this state with at least a 2.5 GPA will get full tuition at a state university. It’s modeled after the “El Dorado Promise,” which is a program in that town that does the same thing for graduates from El Dorado high school.

On the flip side, Arkansas State University is complaining about Halter’s use of the term because they have a scholarship for ASU students called the Arkansas Promise Scholarship. They claim that they trademarked the name “Arkansas Promise” and that Halter’s use is confusing as to their trademark and represents infringement.

Spending less than two minutes online, it becomes clear that Arkansas State did not register “Arkansas Promise” with the US Patent & Trademark Office, but they did register “Arkansas Promise Scholarship” with the Arkansas Secretary of State.  Yet — and this is the important part —  a trademark does not have to be registered to be valid.  Registration merely confers certain presumptions in favor of the trademark holder, should a trademark issue arise in court.  If Arkansas State used the phrase “Arkansas Promise” in some form of commerce prior to Halter’s use — if they distributed it in any marketing materials, catalogs, advertisements, or on the internet — then they have a valid trademark, and they have priority against all uses that may be likely to confuse.

Why did I stress “likely”?  Because the distinction that the Halter camp seems to be drawing is that there is no infringement issue here because he’s not talking about a scholarship; he’s talking about a public policy initiative.  Yet, in many ways, that’s a distinction without a difference.  At the end of the day, both Arkansas State and Halter are talking about providing some portion of a college education for free.  It seems like a stretch to pretend like using “Arkansas Promise” to talk about some different form of scholarship, especially as a major plank in a statewide campaign, would not cause some amount of confusion among people who might be attending or considering attending Arkansas State.

I say all of this as someone who is incredibly fond of Halter’s proposal.  I think it is a terrific idea, provided the math behind it works out.

Unfortunately, I also say it as an attorney who is familiar with intellectual property law in general and trademark law in particular.  In that context, Arkansas State appears to be totally correct, and the sooner the Halter campaign recognizes this and deals with the issue, the better.

***

Whine & Jeez Crowd.  Fun exchange on Twitter last night with Jason Rapert.  He took issue with my post about the comingling of the assets of his 501(c)(3) and his 2012 campaign for state Senator.

In response, I asked if he was willing to answer some questions. He continued to retweet and reply to friendly faces on Twitter, eventually claiming that my post was a non-issue because he’d explained everything to Max Brantley years ago and claiming that he and his non-profit were an open book.  I pointed out that he’d never addressed PO Box or phone use with Max, but I took him up on his claim of being an open book.

Jason spent a good deal of time talking about how, as a business, he is subject to certain regulatory oversight.  Which, of course, has nothing to do with anything that’s been mentioned here.  But he probably knows that.  I don’t take him for an idiot.  Anyway, I never got a response to my request, so I followed up:

Jason’s petulant response was his entire existence in microcosm:

See how that works?  Claim to be an “open book,” then, when someone asks you to do the kinds of thing that an open book would do, claim some sort of partisan excuse for why you won’t provide the information.  Oh, sure, it would be easier, and make much more sense, to provide the requested information if you were truly open to examination, but pretending to be a victim of partisan attacks is how the modern ARGOP gets down.  Why actually address something on the merits if you can just cry about how people are treating you unfairly by asking you to prove that you haven’t violated federal tax laws?

Even Max chimed in about Rapert’s farcical assertions:

I suppose a shorter version of this part of the post would read as follows: Jason Rapert is a lying coward, but I invite him to prove otherwise.

I won’t hold my breath.

Update: Rapert re-engaged with me and other about this issue on Twitter this morning.  He continued his efforts to change the subject, obfuscate the issue, play the victim, and dodge any real answers. He even went so far as to give me his insights into the law, which is akin to my telling him about the finer points of fiddlin’ or woman-hatin’ or sloppily filling out 990s.

***

Buy That Kid A Dictionary.  In Ryan Saylor’s story about Susan Inman’s running for Secretary of State in 2014, there was a gem of a quote from Roland Alexander Reed:

In an e-mail, Alex Reed, Martin’s press secretary, simply said [of the BHR story about Martin’s dalliances in NWA], “All frivolous accusations.”

I sometimes wonder if anyone in the Secretary of State’s Office actually believes the inanity that spews from that office.  “Frivolous” means “Unworthy of serious attention; trivial.”  Now, maybe I am alone, but I don’t see how a constitutional officer’s missing multiple days of work, simply because he’s at home, during the legislative session is “unworthy of serious attention.”  I fail to see how spending weekday time playing on Facebook in Prairie Grove, when state law requires his residence to be in Little Rock, is “trivial.”  And I certainly can’t understand how, given the actual evidence of these behaviors, someone could pretend like my post was baseless or “frivolous.”

In short, Roland:

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