May 10, 2019

The Libertarian Party of Orange County received a cease and desist letter from the Orange County Attorney's Office dated May 7, 2019 regarding the use of the text-less "orange" design element in the Party's logo and branding. The summary version is that Orange County asserted that this particular design element was protected by Orange County ordinance (under threat of fine and/or imprisonment) and that the Party using it was "likely" to "mislead" Orange County "consumers" who may mistakenly believe that the Libertarian Party was affiliated with or endorsed by the Orange County government. Needless to say, the latter claim is absolutely ludicrous. The Party has never portrayed itself as having any sort of positive relationship with the Orange County government. We also note that the county attorney's reference of holding "trademark" opens up an interesting can of worms since according our understanding of both Florida and federal law, county governments cannot actually legally hold trademarks on seals and logos, and all works produced by them are considered public domain. Does Orange County illegally hold trademarks? Or did the county attorney simply misspeak? We'd like to know the answer to that.

We've attached a full copy of the original letter and our formal response here:

 

 

The irony of it all is that the Orange County Libertarian Executive Committee had already decided, even prior to the receipt of this letter, to redesign all of our branding this month to meet our own marketing objectives. We are not attached to the logo that the cease and desist covered. One month later this whole kerfuffle would have been irrelevant. Had the letter simply been a polite request to discontinue use, informing the county of our plans would have been our response. However, the original letter contained some illustrations of the disturbing and abusive way in which the Orange County government sees its relationship with its residents. We felt compelled to respond accordingly.

Until our actual branding redesign is completed, we did in fact temporarily change all branding and logos to replace the original "orange" design element with a pixelated and censored version with a large "no" symbol on top of it. This logo is intended to satirize the actual relationship between our Party and the Orange County government. We note that satire is a particularly strongly protected category under freedom of speech and copyright jurisprudence. Changing the logo complies with the referenced ordinance (Orange County Code of Ordinances Chapter 2 Article I Section 2-3) and associated Florida Statute (F.S. 165.043) that authorized the ordinance to be passed, which does not distinguish between intent to defraud and does not care whether anyone was actually harmed or misled. Like so many laws, there is no concern for whether an actual victim exists or whether any actual harm was done.

The ordinance lists a specific set of graphics - present in the ordinance itself - that are considered protected by law, and violations are punishable as a second degree misdemeanor. It is unclear how exactly the punishment would apply to an organization such as the Party rather than an individual - i.e. whether the Party itself would be fined, or whether the Chair would be held personally liable. Under normal circumstances, case law in Florida such as Microdecisions, Inc. vs. Skinner established that county governments are not allowed to copyright images. Furthermore, government seals from state to municipal level are explicitly forbidden from being trademarked by federal law under 15 USC 1052(b). None of the logos referenced appear to be registered as a state or federal trademark, although we are still in the process of researching that to be sure. Given the extreme complexity of the Orange County Code of Ordinances, we were unaware of this particular ordinance and referenced statute that enabled the county to enforce unique use of that particular graphic regardless of its derivation or trademark status. It is an interesting open question as to whether this particular Florida statute and Orange County ordinance are actually constitutional under federal and state constitutional law.

The piece in the original letter that particularly stands out to us is euphemistically calling Orange County residents as "consumers." Just the idea that the local government considers its residents as “consumers” of itself is disturbing. Consumers exist in a voluntary relationship in the marketplace where choices can be made and individuals can choose whether or not to use a particular service. A consumer relationship is NOT one based on force and coercion, much less threats of locking people in a cage. If I’m a voluntary "consumer" of Orange County, then I would be able to decide to opt out of Orange County services and in exchange not pay my property tax, sales tax county surcharge, or local gas tax surcharge. I would also be able to choose to do business in Orange County without the business tax license or zoning approval unless I wished to be provided relevant Orange County services. Obviously none of this is true and Orange County's extremely involved relationship with its residents is best described as "abusive."

At the end of the day, the whole issue is minor from our perspective. We doubt the Orange County Attorney's Office proactively found this issue on their own. No doubt someone - likely from another political party - saw our logo and complained about it to use the law as a weapon against a political adversary. We take all such attacks in stride as a sign that the Libertarian movement is strengthening in Orange County. Litigating this would be an absolute waste of taxpayer funds, as was the original effort invested by the Orange County Attorney's Office in pursuing this complaint to begin with. Pursuing this complaint may well have exposed the original ordinance as unconstitutional, if we had not chosen to comply in a satirical way for our own reasons, and we may yet find out that the Orange County government itself is illegally asserting trademarks.

We hope the Orange County Attorney's Office finds a more productive use of its time moving forward.