AFLAC loses round in bid to quash quacking campaign ads
By The Associated Press
09.18.02
CLEVELAND — Gubernatorial candidate Tim Hagan can keep using Internet ads featuring Gov. Bob Taft's head on a duck's body, a federal judge ruled, dismissing objections by AFLAC insurance.
AFLAC had complained that the duck in Hagan's Web ads looks too much like the one in AFLAC's commercials, which feature a duck quacking the company name. But U.S. District Judge Kathleen O'Malley refused to block the ads yesterday, saying they represent protected political speech.
Hagan, a Democrat, and Taft, a Republican, face off in the Nov. 5 election.
AFLAC had asked for a temporary restraining order to force Hagan's campaign to remove the ads from the campaign's Web site, www.taftquack.com. In one of the ads, a duck with Taft's face shouts "Taftquack" in response to Taft's campaign commercials.
AFLAC lawyer David Stewart argued the "Taftquack" duck could lead consumers to believe AFLAC was endorsing the Hagan campaign. He also said Hagan's ads diluted the power of the AFLAC commercials by muddying the association AFLAC has created between its insurance and the duck that quacks "AFLAC."
"The consuming public took a look at these ads and said, 'This is the AFLAC duck,' " Stewart said, holding up news articles that noted the similarity between the ads.
"They are appropriating the AFLAC duck as their spokesperson."
Stewart said the campaign ad should be considered commercial speech, not protected political speech, because it solicits campaign contributions and is intended to get Hagan a paying job.
But Hagan attorney Richard Knoth said the ducks are dissimilar, and that the ads are political speech protected under the First Amendment.
"If there is not political speech in this case, there is no political speech in the United States," Knoth said.
O'Malley agreed there is a danger that political campaigns will use successful commercial trademarks that companies have spent time and money developing. But she said the First Amendment still falls on Hagan's side.
"There simply are no commercial purposes that can be found in the particular ads at issue," O'Malley said.
Knoth told reporters the decision will be far-reaching because no other case law so directly addresses the issue of trademark infringement in a campaign ad.
AFLAC lawyers declined to comment after the ruling. The company is still seeking a permanent injunction to block the ads, and O'Malley scheduled an Oct. 10 hearing on that request.
Taft spokesman Orest Holubec said the governor's campaign is not involved in the case.
"It's unfortunate that our opponent has started a negative campaign," Holubec said. He said there are no negative ads on the Taft Internet site, www.governortaft.com.