by David Coale of Lynn Pinker
(Aug. 26)- Monty Python’s famous “Dead Parrot” sketch involved John Cleese and Michael Palin debating whether a dead bird sold by a pet store was, in fact, deceased. In that same spirit, the recent Fifth Circuit case of Alliance for Good Government v. Coalition for Better Government, No. 17-30859 (Aug. 22, 2018), addressed whether the Coalition’s bird-based logo infringed the Alliance’s trademarked logo:
The Fifth Circuit panel observed, as did the district court, that Coalition’s bird appears identical to Alliance’s, “with the same down-pointed beak, gazing over the same wing (the right), sporting the same number of feathers (forty-three).”
Coalition admitted that the two fowl “are both birds of prey,” but “attempted to distinguish the two logos – not by appearance, design, color, or font – but by the birds’ species,” It argued that its bird was a hawk, while Alliance’s was an eagle, which led to a puzzled exchange with the district judge:
DISTRICT COURT: They look exactly alike to me, the two birds.
COUNSEL: […] [N]o, they really aren’t, your Honor, if you look at the wing span. The wing span of the eagle is different from the hawk. It’s much larger and it fans out, and that’s just the way the hawk looks.
The Fifth Circuit affirmed: “To cut to the chase: Alliance and Coalition have the same logo.” “We agree with the district court: the birds are identical. Whether that bird is a haliaeetus leucocephalus (bald eagle), a buteo jamaicensis (red-tailed hawk), or some other bird, we need not determine.”
The opinion went on to review other legal aspects of Alliance’s trademark claim, but their outcome was largely preordained once the “bird species” argument was rejected.
Newly-appointed Judge Stuart Kyle Duncan wrote the opinion, joined by Judges W. Eugene Davis and Catharina Haynes.