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When Boalt Hall School of Law professor Mark Lemley got a call from Green Party presidential candidate Ralph Nader recently, he found a cause he could support. Nader wasn’t calling for donations to his long-shot campaign. Instead, he was seeking legal representation in a trademark infringement suit filed against him by MasterCard International Inc. after Nader put out a campaign ad that is a send-up of a famous MasterCard commercial. Lemley, a well-known copyright scholar, saw an important legal principle at stake and agreed to represent Nader pro bono. “It would be a bad precedent to be enjoining political ads on the basis of trademark claims,” Lemley said. It’s important that the law allow “for both humor and politics and IP not take it over.” Although Nader’s television ad elicited chuckles around the country, MasterCard claimed the candidate’s 30-second spot infringes its trademark advertising campaign. In MasterCard v. Nader 2000 Primary Committee Inc., filed in the U.S. District Court of the Southern District of New York, the company requests an injunction against the ad and damages in excess of $1 million. A hearing on the case is scheduled before Judge Richard Casey on Sept. 12. A court brief says the ad is “core political speech.” Further, the brief says the spot is clearly a parody of MasterCard commercials and thus protected, expressive speech. “This is the first time anyone has tried to enjoin a campaign ad in the middle of an election,” says Lemley, who is also of counsel at Fish & Richardson. The Nader promo, which began airing last month, spoofs MasterCard’s well-known “priceless” commercial. Like MasterCard’s ad, Nader’s TV spot depicts a series of items and the cost of each. The ad reads: “Grilled tenderloin for fund-raiser: $1,000 a plate. Campaign ads filled with half-truths: $10 million. Promises to special interest groups: over $10 billion. Finding out the truth: priceless.” The ad concludes: “Without Ralph Nader in the presidential debates, the truth will come last.” MasterCard’s commercials, which began running in 1997, each conclude with an intangible item (e.g., “an evening with your husband”) with the voice-over: “There are some things money can’t buy. For everything else there’s MasterCard.” In addition to infringing its trademark and copyright, MasterCard says Nader’s ad misleads consumers into believing that the company is connected with his presidential campaign. Nader dismisses this reasoning. “It seems quite clear that everyone except MasterCard ‘gets’ the joke,” a court brief by Lemley and others at his firm states. “Virtually all the news commentary on the ad comments on the ironic juxtaposition of Nader 2000′s ad with MasterCard’s campaign.” MasterCard contends, however, that the Nader ad is commercial speech rather than parody. “There is a major difference between a spoof — as Jay Leno, David Letterman and Saturday Night Live” have done in takeoffs on the ad, and the promotion of a product, said Chris O’Neill, MasterCard’s vice president of global marketing communications. “Nader is doing the ad to promote his candidacy” and get consumers involved in his campaign. But Lemley contends the ad has no commercial use. “If Visa ran this ad, they’d have a legitimate complaint,” Lemley said. “But Ralph Nader is not Visa.”

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