A Montgomery County judge will rule Monday on a preliminary injunction aimed to stop Gov. Lawrence J. Hogan Jr.’s campaign from using certain apple imagery in his reelection bid.
The Montgomery County Education Association and Maryland State Education Association filed an infringement claim earlier this month in Montgomery County Circuit Court. The teachers unions are seeking an injunction to stop the Republican governor’s campaign from using red apples and the phrase “Teachers for Hogan” in campaign literature.
The MSEA, which has endorsed Democrat gubernatorial candidate Benjamin T. Jealous, took issue after the Hogan campaign revealed “Teachers for Hogan” bumper stickers. The union asked the campaign to cease using the phrase and a red apple logo.
The Montgomery County Education Association has a registered service mark with the U.S. Patent and Trademark Office for the outline of an apple and a separate registration for the phrase “Teacher Recommended.” The local affiliate allows MSEA to use both on a statewide level.
But after MSEA’s initial request, Hogan’s campaign doubled down, creating an MSEA-esque “Teachers for Hogan” logo and filming a staffer delivering a basket of red apples to the union’s Annapolis office with a note that read, “There are plenty of apples to go around!”
During a hearing on the request for a preliminary injunction Friday, Hogan’s attorneys also argued that MSEA and MCEA wanted the judge to grant overly broad protections for the service mark and that the action aimed to curtail the First Amendment rights of those teachers in the state who do not agree with the union’s endorsements.
The campaign’s attorney, Timothy Maloney, also said that the unions had expanded their literature over the years to include numerous depictions of different apples, not just the outline for which they were awarded a service mark.
Kristy K. Anderson, representing the union, said the logo created by the Hogan campaign was clearly designed to be deceptive. Anderson pointed out the general size and shape of the apple, as well as the “Teachers for Hogan” font appeared the same as the MSEA logo.
Maloney pointed out that the Hogan campaign used that image only in posts attacking the union, clearly not trying to mimic a union endorsement.
But Anderson said without an injunction the campaign could use the logo in other ways going forward, and that Maryland law protects trademarks from a “likelihood” of confusion.
She said the use of an apple along with the phrase “teacher recommended” and other phrases like it have attained a significant meaning in Maryland politics.
The hearing at times delved into the nuanced differences in stem and leaf placement on the teachers union logos over the years, as well as apple shapes and colors. The union has used red apple ballots and white apple ballots. The endorsement logos have been plump and slim, sometimes with stems and leaves and sometimes without. The colors have changed over the years, and sometimes even a bite has been missing from the apple.
That, Maloney said, was evidence that the teachers union had not “perfected” their mark.
Judge Michael D. Mason expressed concern about the breadth of the injunction sought by the teachers union. He was concerned that barring the use of any apple of any color with the word “teacher” in political advertising was overly broad.
Mason also noted that the service mark registration was limited to the outline of an apple, intended to protect the apple-shaped Apple Ballots that are distributed at polling places, which were not at issue in the hearing.
Maloney argued that the case was simple. The Hogan campaign used a generic Adobe stock image of an apple — not the precise image registered federally — and did not use “teacher recommended,” the phrase registered federally.
“We could be finished in two minutes,” Maloney said near the start of what would become a four-hour hearing.
Anderson said the purpose of the court hearing was not to test the validity of the service mark registration that had been granted, but to protect the value of the union’s endorsement and avoid confusion.
The union endorsed Jealous during his party’s primary; Hogan did not take part in the union’s endorsement process this year.
“We have the right to speak for those 75,000 people who made that endorsement,” Anderson said.
Maloney said the union was trying to appropriate the right to speak for the entire profession.
The MSEA released a statement after the hearing. “We tried to resolve this issue with the Governor’s campaign quickly and without fanfare and it is unfortunate that they forced us to file a lawsuit to protect our trademark. We are confident in the merits of our case and look forward to the Court’s ruling. We will continue to vigorously defend our registered trademark of an apple in connection with phrases that imply the political endorsement of educators or teachers, no matter the candidate or political party, as we have done in previous elections.”
Mason is expected to rule on the request for a preliminary injunction Monday afternoon.