Watchdog wins ‘seal’ of approval

UNION COUNTY — Blogger and longtime county activist Tina Renna has been a thorn in the side of the county for years. Both the county and Renna have sued each other on multiple occasions, with both landing on the winning side at times.

Recently Renna checked off another win for her side when a U.S. District Court judge decided it was her First Amendment Right to use the county seal on a local cable access show in Cranford.

According to U.S. District Court Judge Kevin McNulty, a county seal cannot be deemed a “protectable trademark or service mark” under the law and therefore the county has no valid claim to stop Renna from using it.

Ironically the lawsuit, filed in 2011, is no longer applicable because the activist’s cable show is no longer broadcast by TV35 and according to several sources in Cranford, never will be again because of the problems it caused.

The lawsuit was brought against the county by The Rutherford Institute, a non-profit civil liberties group, which provides legal assistance to those who feel their rights have been abused.

Renna, president of “The County Watchers,” a website and blog that focuses on bringing more transparency to county government, used the county seal as a backdrop for a TV35 cable show called “Union County Citizen’s Forum” in 2010.

However, although the court decision is now a moot point, the attorneys volunteering their time to The Rutherford Institute are eligible, by law, to bill the county for legal fees resulting from representing the blogger.

It all began in 2010 when the county issued a cease and desist letter to Renna, ordering her to stop using the seal on the local cable access show because it constituted trademark infringement under the Lanham Act.

Since TV35 is financed by the township, this became a legal issue for Cranford as well.
The fact Renna continued to use an on-air graphic illustration depicting the seal of the county with a spotlight shining on it raised the ire of county officials, who sent a letter to Cranford warning them to stop displaying the seal except in broadcasts involving freeholder meetings.
According to McNulty’s decision, handed down May 29, whether the county “tried to bully a constituent is for the public to decide,” but the matter before him was to decide the scope of trademark law.

The county maintained that Renna, a resident of Cranford, was infringing on trademark protections associated with the seal and therefore they had a right to order her to stop.

Renna defended her use of the county seal maintaining the county had absolutely no trademark rights to the official seal and therefore there was no violation when she used the seal as a backdrop for her show.

She further argued that the county “deprived her of her first amendment rights” when they threatened to enforce trademark laws against her.

McNulty acknowledged that Renna was “an outspoken critic” of the Board of Freeholders, but pointed out Renna’s TV35 cable show focused on the governmental activities of the county.

He further noted that on July 10, 2010, the county submitted an application seeking to register the county seal as a trademark.
The following September, County Counsel Robert Barry sent a “cease and desist” letter to Cranford, informing them they were using the seal without proper authorization. He also mentioned that the county had a pending trademark on the seal and the township was “committing trademark infringement” by allowing TV35 to use it in Renna’s show.

Court papers mentioned that Renna discussed this letter with TV35 station manager Ed Davenport and he asked her not to use the seal from that point on. At the time Renna was not taping new episodes of the show because the station was undergoing renovations.

Meanwhile, in October, the county’s application for a trademark for the seal was rejected by the U.S.Patent and Trademark Office and the county was given a six-month window to appeal that decision.

In January TV35 station renovations were completed and Renna resumed taping her show. However, because the cease and desist letter caused the activist to fear she might indeed have an issue with liability, Renna replaced the old logo. She replaced the county seal with a photograph of the county manager, George Devanney. That resulted in Renna receiving a request from the Cranford township attorney to stop using the county manager’s picture as a logo.

In the meantime, concerned about the county suing them, TV35 asked Renna to sign an indemnification agreement, which would have put the burden of any forthcoming lawsuits on the activist, not the township

Renna claimed in her lawsuit against the county that this put further pressure on her and fearing she could be held personally liable, the activist refused to sign the agreement.

In February 2011, an attorney representing the Rutherford Institute sent a letter to county counsel Barry explaining the county seal could not legally be registered as a trademark and in trying to press this issue legally it was an infringement on Renna’s First Amendment Rights.
They also requested the county withdraw its demand that Renna and TV35 stop using the seal.

In April the county rejected the institute’s demand in a letter signed by Norman Albert, First Deputy County Counsel. Albert’s letter opened with an update announcing “for your information, this seal is in fact now trademarked.”

Albert also stressed the county merely was protecting its official seal, which was also protected by trademark “from direct and unauthorized use.”

However, Albert was wrong in this case.

Somewhere along the line there was a miscommunication which the county now contends was the result of “clerical or administrative error.” According to a county official, although Albert assumed the trademark had been applied for and accepted, this was not true.

In October, because it had been six months since the county responded to the U.S. Patent and Trademark Office action denying registration of the seal as a trademark, the USPTO issued a Notice of Abandonment for the county’s trademark application. At this point the county immediately tried to revive its abandoned trademark application, but the USPTO again explained the county could not register the seal as a trademark. Again the county did not respond within the six month allotted time frame allowed.

The judge further found the USPTO also was on solid ground when rejecting the county’s application for trademark on the seal.
He also found that Albert was premature in stating to Cranford that a trademark was pending on the seal and later when he announced that the seal was “in fact now trademarked under federal law.”

“That statement carried the misleading implication that some intervening event had solidified the trademark status of the seal. In fact the opposite was the case,” McNulty said in his decision, adding that the USPTO had “categorically already rejected the county’s trademark application.

McNulty also took exception to Albert stating in a letter to Renna and Cranford that the unauthorized use of the seal was “a crime.”
“It’s hard to discern any purpose, other than general intimidation, for the citation of this criminal statute in a communication to a citizen, even one represented by counsel,” the judge noted, mentioning that Albert offered no justification or explanation for using this statute as a threat.

In addition, McNulty said the county could not claim infringement under the Lanham Act because the seal was not then and is not now a registered trademark.

“The seal has no registration status ‘pending’ or otherwise,” he added, further noting that even though the county suggested that as an unregistered seal it has the same protections as a registered mark, that was not true.

McNulty pointed out that in court documents, her legal defense noted that there could be no likelihood of “confusion” over Renna’s use of the seal because “no reasonable person could believe that Renna, “a vociferous critic of the county, spoke for the county or offered county services.”

McNulty suggested that while the county indicated a viewer of Renna’s TV35 show could be misled by the spotlighted county logo, they never offered any evidence that anyone was, or was likely to be deceived and thereby did not meet the threshold burden of demonstrating that trademark law was the appropriate vehicle for its complaint about Renna using the seal.

Renna further asserted that by using the seal she was, in fact, exercising her right “to describe and criticize the workings of county government.”
McNulty agreed.
“Renna clearly is using the county seal in an expressive manner. That expression, moreover, is a political expression, entitled to the highest degree of constitutional protection,” he said in his court decision.
“Should a county, by means of artful extension of trademark law, be permitted to quash political expression that uses its seal? I think such an extension would be both unwarranted and constitutionally risky,” McNulty said, adding that “freedom of speech and of the press guaranteed by the constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern.”

The Rutherford Institute called the decision by McNulty a “resounding victory for the First Amendment, especially as it relates to freedom of the press.”

They noted that by rejecting the county’s claim that Renna was infringing on trademark protections associated with the county seal, the court asserted that Renna’s use of the seal is protected by the First Amendment and the county’s infringement claims were “a baseless attempt to impede her free expression in pursuit of increased government transparency.”

John W. Whitehead, President of the Rutherford Institute commented on the ruling.

“In fact, the first Amendment does more than give us the right to criticize our country; it makes it a civic duty. Indeed, duties of citizenship extend beyond the act of voting. Citizens must be willing to stand and fight to protect their freedom,” he said, adding this was “patriotism in action.”

Renna said on her blog, “The County Watchers,” that McNulty’s decision “chronicles Union County’s intimidation tactics in this matter.”

“Considering the county’s oppressive un-democratic behavior in this matter, what I found particularly appalling was their claim that they owned the exclusive use of their seal because Hannah Caldwell was depicted on it and this made it unique and somehow they believed they had to protect Caldwell’s image,” said the activist, adding “I believe with my whole heart Mrs. Caldwell, a revolutionary, would be very happy that I stood up to the oppressive agents of Union County Government.”

When reached for comment on the court decision, Union County Communication Director Sebastian D’Elia said the county was exploring whether to appeal McNulty’s decision.