Outside the Courtroom: "Sassy Parody" and Cindy McCain Against Hate

Picture 180Two updates on the Prop 8 fight happening outside the courtroom. First, Protect Marriage has just sued the Courage Campaign for what it says is trademark infringement. At issue is the logo (on the left) Courage Campaign is using for its trial tracker–depicting two women and their children–which is a clear parody of the logo ProtectMarriage uses (to the right), depicting a mommy and daddy and two kids.

Picture 181As Courage Campaign points out, to argue that the logo is indistinguishable (and therefore a trademark violation) ProtectMarriage has resorted to saying their hetero family logo is itself indistinguishable from the logo featuring a family parented by two lesbians.

We continue to be entertained by the Prop 8 attorneys simultaneously admitting that the two images of gay parents and straight parents are “substantially indistinguishable,” and yet failing to grasp that that the difference between the logos illuminates the core difference between their views and ours.

Well, I guess if ProtectMarriage is willing to concede that point…

Cindy NoH8In other news, Cindy McCain has signed up for the No H8 campaign, adding yet another prominent Republican voice to the growing list that opposes the discrimination of Prop 8 (this picture is from advocate.com via HuffPo).

Finally, go watch the depositions of two Defendant-Intervenors’ witnesses, Paul Nathanson and Katherine Young (here’s DDay liveblogging the introduction of these depositions this morning). Not only will you get to see David Boies at work, but you’ll see the Defendants-Intervenors’ own expert witnesses (though these are two of the witnesses who have backed out of testifying) making a great case for marriage equality.

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  1. BoxTurtle says:

    First, good for Mrs. McCain.

    Second, those logos do looks similar enough that if the pro-8 folks were willing to push it all the way they’d likely win a ruling 1-2 years down the road.

    But I don’t think a judge will issue an injunction. If they find one that will, just change the color to pink!

    I wonder if Walker or Kennedy will review those depositions. If so, they’re going to be even less impressed with the quailty of the Pro-8 case.

    Boxturtle (The Pro-8 folks could lose Scalia if they keep this up!)

    • emptywheel says:

      These clips of the depositions were played in today’s testimony (and I think the expert witness addressed some of it). So Walker has seen both these clips, and I believe these (unlike some of the other depositions noticed by the court) were formally admitted.

      • BoxTurtle says:

        Well, that can’t be good for the pro-8 folks. He’ll actually be able to cite those depositions in his opinion.

        I’m actually beginning to think that he WON’T stay his ruling when he overturns prop-8. What’s lawyerspeak for “Clear my courtroom, you flakes. This is bloody ridiculous”?

        Boxturtle (If I was a pro-8 lawyer, I’d be drinking heavily)

        • bmaz says:

          Yeah, but keep in mind that that has been cherry picked and pieced together by one side. There is another side that can probably find some nuggets too.

          • BoxTurtle says:

            True enough. Walker will make sure those get into the record as well, so as to eliminate that avenue of appeal.

            Try as I might, I haven’t seen anything yet that would convince Kennedy. I’m just not sure where the pro-8 folks are going with their lines of questioning, as it seems like their cross is boosting the anti-8 folks case more often than it’s boosting their own. But most often it seems to lead nowhere, and only annoys the judge. They’d better be hoping they can pull it all together when their turn comes.

            Boxturtle (Does Judge Walker sometimes daydream of using his gavel as a mallet?)

            • bmaz says:

              It is the totality of the evidence and the standard of review. If the Supreme Court is stuck with strict scrutiny and the record that looks like is shaping up, and they are stuck with the evidentiary record transmitted to them from the trial court on up, then they could be in a posture of choosing between looking like bigoted jackasses or upholding what we think will be the ruling coming out of Walker and the 9th. There comes a point to where I should think even some of the haters on the Supremes might not want their legacy to be tarred with something that will equate them with the last vestiges of support for racial discrimination. That is why I keep saying how incredibly groundbreaking and significant this trial is as to the evidentiary foundation being laid.

              • BoxTurtle says:

                I know you think a case can be made, but I think if the pro-8 lawyers can successfully get anything less than strictest scrutiny they’ve earned their pay. But that alone won’t be enough for a win.

                Boxturtle (The little voice in my head keeps saying “Remember Dred Scott”)

              • donintexas says:

                Don’t underestimate the political hacks in black robes on the High Bench.

                Just look at Bush v. Gore!

    • bmaz says:

      Either the full transcripts with citations to relevant portions by each party, or stipulated excerpts, will absolutely be entered as part of the record.

      • emptywheel says:

        One one of the other D-I witnesses, Walker was asking for references to the relevant portions, though I think the D-Is will ask for the whole report to go in.

  2. Jim White says:

    Heh. I’m loving the recent logo battles. I think the Courage Campaign should be able to win; they’ve changed the color of the entire logo and the sex of an adult. That should be enough. Another logo battle is an operation started by a high school kid in St. Louis who got sick of all the rich kids at his school wearing their North Face items, so he started The South Butt. Here’s the disclaimer from the website:

    We are not in any fashion related to nor do we want to be confused with The North Face Apparel Corp. or its products sold under “The North Face” brand. If you are unable to discern the difference between a face and a butt, we encourage you to buy North Face products.

    Oops, now after a visit to the Courage Campaign site, I see they didn’t change the color scheme, but maybe they should add a disclaimer similar to the one from The South Butt, but that could prove problematic. “If you can’t tell the difference between a man and a woman…” Uhm, no, we can’t send those folks over to the Prop H8 side, they won’t be welcome.

    PS My South Butt t-shirt should arrive any day now.

  3. scribe says:

    Just saying:

    If Protect Marriage is among the defendant-intervenors, then a good argument can be made by the plaintiffs that the mere act of bringing a suit against Courage Campaign should be the subject of judicial notice, as well as the allegations of the complaint.

    I haven’t looked at the form trademark infringement complaints lately, but I’ll guess they include something along the lines of requiring a close or exact identity between the two marks, and that such identity must be alleged by the plaintiff. Soooo, as all seem to have noted already, that would mean that the “Protect” people are saying their logo and/or the meaning conveyed by it is the same as the “Courage” people’s.

    But, that would also give rise to a claim of judicial estoppel barring the “Protect” people from saying their logo/meaning is not the same as the “Courage” people’s. Us lawyers know that a judicial estoppel is something nasty – it’s imposed by the court to bar the party from saying one thing in one forum and the opposite in another. In the widely-cited words of one court it was developed to prevent litigants “From playing fast and loose with the Courts” and “make sure liigants can’t have their cake and eat it too.”

    My favorite example remains the lawyer who, while getting divorced, came out with a really low value for his partnership, so as to not have to pay half or so to his wife. Then when his wife fought him, claiming he was undervaluing it, he fought harder. A while goes by, and he gets cut loose from his law firm and sued them over the paltry sum he got in severance. He started to present his case about how the partnership was worth more, but his now-ex-wife got wind of the suit and reminded the firm of the low value he’d put on the partnership interest in their divorce. That was placed before the Court and the judge whomped him with the judicial estoppel, preventing him from arguing now that the partnership was worth more than he’d argued it was worth in the divorce.

    So, I gotta wonder whether the plaintiffs can make this work – I don’t know who all the parties are and identity of the parties is necessary for the estoppel to apply. But if the parties are the same, the Court can take it into evidence on judicial notice.

  4. emptywheel says:

    And for those of you not following along the liveblog right now, the plaintiffs introduced some really inflammatory emails and whatnot on the “unprecedented” collaboration between the Catholic and LDS churches on the campaign and the degree to which the LDS was collaborating with the campaign, formally.

        • MadDog says:

          How does one respond?

          Perhaps “At least it’s not the end zone.”

          Or “Oh-oh, bedtime stories at EW’s. Kids, close your eyes!”

          Or perhaps “Tell us more!” *g*

          On a more serious OT note, Sully is ragging on Jane again:

          I have to say that my deepest gloom right now is about how exactly the kind of red-blue, right-left, abstract ideological posturing that has bedeviled the US since Vietnam has come back with a vengeance. My hope was that Obama could get past this. He’s trying and his record, to my eyes, is exactly as he promised. But old habits die hard, and the anger on the left and viciousness on the right seems straight out of a boomer playbook. I think the right is much more destructive right now, but the Hamsher left is driving me a little nuts as well

          (My Bold)

          I’m thinking he’s probably halfway through his after dinner doobie and listening to the Doors.

          The man sure does seem to enjoy his bummer!

  5. Inquisitr says:

    Good for McCain. But I gotta say, damn those eyes kinda freak me out. Her airbrushed perfect skin makes those eyes amazingly soulless looking.

        • MadDog says:

          I’ll give Cindy due credit for this particular position, but not much else endears her to me.

          And yes, Cindy is no Michelle Bachmann. For that we must be thankful.

            • MadDog says:

              I do hear what you’re saying.

              On a personal level, she may be nice person, but I can’t say that her public performances during her husband’s campaign in 2008 were in my view especially “praiseworthy”.

              Some of them were the typical “over the top” standard fact-free Repug demagoguery.

              Note that I don’t hold that out to be a mortal sin with damnation to hell forever as punishment since I do plead guilty to the charge of doing it on occasion myself. *g*

    • bobschacht says:

      But I gotta say, damn those eyes kinda freak me out. Her airbrushed perfect skin makes those eyes amazingly soulless looking.

      I’ve always thought that, too. But IIRC, I was told that those freaky-looking eyes have something to do with her contact lenses. Maybe bmaz remembers.

      Bob in AZ

  6. Sharkbabe says:

    i’m truly grateful for FDL’s coverage* of this case and all the great analysis on threads like these .. thx everyone

    *yes, i did donate :) and enjoying every nickel’s worth so far

  7. mzchief says:

    On first glance this is way too slick. Cindy’s “No H8” is not going to save John McCain’s Senate seat or resurrect him as “maverick” or make him suddenly fit for doing anything but retiring from office. The “Real John McCain” (http://therealmccain.com) is not going down the memory hole. By the way, folks do remember how Cindy looked and acted during that campaign.

    • MadDog says:

      I’m betting EW is busily consuming this IG report and will have a post on it shortly, but as I start reading this massive document (Beware! 306 page PDF), even the Table of Contents (page 4) has dynamite stuff that just jumps out at you:

      …III. Inaccurate Statements to the Foreign Intelligence Surveillance Court

      A. FISA Case No. 1

      B. FISA Case No. 2

      C. FISA Case No. 3

      D. FISA Case No. 4

      E. OIG Analysis…

      • MadDog says:

        On the page 4 Table of Contents of this document (Beware! 306 page PDF), the IG report describes something they call:

        …Hot Number [redacted]…

        In further reading (starting on page 93) about “Hot Number [redacted]”, I’m betting that the [redacted] word is “Trapping”.

        The character count seems to fit, and the context in the document describes a belief on the part of some DOJ folks that this fits under the “Pen Register Act” and these:

        …Pen registers…require court orders (pen/trap orders) and are issued for a fixed period of time, not to exceed 60 days…

        Further statements in the document show that the FBI/DOJ’s use of Hot Number Trapping without a court order are illegal and violate the Pen Register Act.

  8. beth meacham says:

    I honestly have to wonder whether John knows that Cindy is doing that ad for NOH8. It’s going to make the Arizona flying monkey right hate him even more.

  9. mzchief says:

    The Cindy on “No H8” got my campaign-posturing antenna up. And now I see this: “Palin and McCain will campaign again” (http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2010/01/20/politics/p115202S88.DTL). Here’s the money quote for that mollification program for the folks you mention, Beth: “I’m looking forward to getting back on the campaign trail with my former running mate, and I know my fellow Arizonans will welcome her, as well,” McCain said in a statement. “Sarah energized our nation and remains a leading voice in the Republican Party.”

  10. laurastrand says:

    Gee, I can’t help but wonder if Cindy’d like a do-over on the whole marriage to the creepy little Mean spirited ex POW who has been more than happy to have her bankroll his political pursuits and call her really terrible names in hearing distance of the press.

    But good on her for supporting the advancement of human rights and taking a very public stance against h8!

  11. Larue says:

    Thanks Mz. Wheeler, should I be shocked Ms. McCain come out on the side of the LGBT community?

    I NEVER would of have expected that . . . . . wonder why . . .