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Presidential candidate Ralph Nader can continue to criticize the fundraising tactics of the major political parties by parodying MasterCard’s “Priceless” ad campaign. New York Southern District Judge George B. Daniels declined Tuesday to find that the Nader television campaign ad, which skewers fat-cat contributions and compromised politicians, infringed on MasterCard’s trademark and copyright. Ruling that MasterCard had failed to make the requisite showing of irreparable harm, Daniels refused to grant the credit card association a temporary restraining order. MasterCard has invested about $250 million in the development and placement of its “Priceless” ad campaign since 1997. The ads begin by showing a series of goods or services along with their cost, and then depict an intangible such as “a day when all you have to do is breathe,” followed by the word or voice-over “priceless.” The ads conclude with the phrase, “There are some things that money can’t buy. For everything else, there’s MasterCard.” The Nader campaign’s ads focus on the need for campaign finance reform. They say, “Grilled tenderloin for fundraiser $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. There are some things money can’t buy.” MasterCard filed suit alleging unfair infringement and dilution of MasterCard’s trademarks under the Federal Trademark Act, 15 U.S.C. Section 1051, which is known as the Lanham Act, and infringement under the Copyright Act of 1976, 17 U.S.C. Section 101. Daniels’ decision came at the close of a 90-minute hearing, in which MasterCard lawyer Russell H. Falconer of New York’s Baker Botts said that MasterCard and its member institutions needed only to show a likelihood of dilution to prevail under the Lanham Act, and that an actual showing of confusion in the mind of the viewer was unnecessary. Falconer called Nader’s defense that the ad was a parody a “post-hoc rationalization” for an infringement actually designed to assist Nader’s candidacy and boost his fundraising. Moreover, Falconer said, the ad could not be considered a parody because “in order to qualify as a parody, that ad must comment on MasterCard.” ‘SO WHAT?’ When Daniels expressed doubt that MasterCard had failed to show the necessary irreparable harm that would follow without a temporary restraining order, Falconer asked, “What would stop Pat Buchanan, Al Gore or George Bush from using the ad? Then we would have a nation of politicians as parodists. That would be ludicrous.” “It could be ludicrous,” Daniels responded. “But the response would be ‘So what?’ — So what if any candidate decides that that is the best ad they’ve ever seen and decides to use it?” But Falconer said viewers would mistakenly believe that MasterCard was making a political endorsement, and that any negative impression created by the Nader camp’s political positions would reflect badly on MasterCard. “MasterCard will be thought of poorly — and all that investment in time and money goes to waste,” he said. Nader’s attorney, Anthony L. Fletcher of New York’s Fish & Richardson, said that people have been telling the consumer advocate for 40 years to “lighten up,” but when Nader finally injected some humor into his public persona, he found himself being sued by “sanctimonious merchants of high-interest consumer debt.” He said the Nader campaign’s “right to express themselves in any manner trumps the rights of corporations not to be made fun of.” “Unless I completely misread the First Amendment, we are talking about the highest form of protected speech,” he said. And Fletcher said the ad clearly qualifies as parody. “Nader changed the ad from warm and fuzzy to cold and caustic — and when you think about it, maybe just a little bit scary,” he said. “He is showing Democrats and Republicans and implying that they have their price. And this [MasterCard's] highly successful ad is every bit as cold and calculating. They are using puppy dogs to hawk more high-interest debt.” Daniels was persuaded that the ad was indeed a parody of the MasterCard campaign, finding that Nader had made fun of MasterCard to help himself politically. Daniels also said there was “very little likelihood of confusion” between the respective ads, and he doubted that viewers would believe that MasterCard was endorsing Nader or his positions.

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