Supreme court upholds ERC ruling
The Student Government supreme court upheld a ruling Friday that will keep candidates Michael Mincberg and Christi Clements out of the race for student body president and vice president.
The Mincberg/Clements ticket was accused of trademark infringement last week, after SG’s Election Rules Commission said its campaign logo bore too much resemblance to SG’s mark.
The logo features the candidates’ first initials, M and C, with bullhorns affixed to each letter. The SG logo sticks to the same formula; the only difference is it has gained permission from the Athletic Department to use the logo, which resembles USF’s new athletic logo that was introduced last year.
In the hearing Friday, Mincberg and Clements argued that the ruling handed down by ERC commissioner Andrew Read was preposterous. Trademark law, Mincberg said, takes into account the whole mark, not just one aspect.
He cited the logo used by the University of Buffalo, whose mascot is also a bull and whose logo also uses a letter U with bullhorns.
In the Buffalo logo, other elements, such as the words “University of Buffalo,” make clear that the logo is in no way affiliated with USF.
In the same way, his campaign sign, which includes the candidates’ names, Web site and election date, set it apart from any official affiliation with the university or SG.
“If we’re guilty of showing Bull pride, using green and gold and showing bullhorns, then, yeah, we’re guilty,” Mincberg said. “But we believe that students are smart enough that they can look at these signs and tell the difference.”
For now, the signs remain up, Mincberg said, as he and Clements are appealing the supreme court’s ruling to the Board of Trustees.
Dustin Sachs, chief justice for SG’s supreme court, said in an interview Sunday night that the court upheld the disqualification on three main grounds:
1. The likelihood of confusion — the mark was used in such a way that students could be led to believe that Mincberg’s and Clements’ campaign was being endorsed by SG.
2. Defiance of the ERC’s ultimatum — Mincberg and Clements refused to remove the signs, even after the ERC gave them 24 hours to do so and told them if they complied, there would be no penalty.
3. Questioning the authority of the ERC commissioner — Mincberg and Clements argued that Andrew Read is no authority of trademark law. But Sachs says that doesn’t necessarily matter; Read has the authority to interpret the law and make decisions based on his interpretations.
Mincberg and Clements, however, hired their own authority on trademark law. Tampa lawyer John. M. Guard accompanied the two to the hearing Friday, but the supreme court prohibits outside counsel; only other students can represent defendants in court. So Guard was not allowed to speak on behalf of the two candidates. He was, however, permitted to submit a brief he wrote in defense of Mincberg and Clements. In it, he cites five cases that address the issue of trademark law.
One, for instance, is Anheuser-Busch, Inc. v. A-B Distributors, Inc. from 1995. In that case, a district court ruled that Anheuser-Busch’s registered trademark “AB” was not similar enough to A-B Distributor’s trademark, “A-B.” The court ruled that the mark did not cause confusion among consumers, and Anheuser-Busch’s trademark was a weak one, as it only uses letters of the alphabet.
When asked if Read’s unfamiliarity with trademark law would undermine his authority to make the final call on disqualifying the candidates, Sachs said, “That remains to be seen.”
But Mincberg isn’t so much concerned with who has what authority in SG. He thinks he and Clements have a good case and that their appeal with the BOT will result in their reinstatement.
“We have enough confidence in SG that if they found that (Read) is being unjust and removing us for a reason that he shouldn’t, that the senate would start an investigation,” Mincberg said.
Mincberg’s older brother, Dave, served as student body vice president from 2001-2003.
When asked if he thought his disqualification was in any way related to his older brother’s tenure, he said he hoped it wasn’t.
“People keep saying things like that to us, but we hope not,” Mincberg said. “We hope that SG elected officials would have enough integrity to care for their students and put them first.”
The official opinion from the seven justices who voted to uphold the disqualification is due Friday. Sachs, who Mincberg said was “very fair and very impartial,” did not vote in this case, as his eighth vote could deadlock the decision in a tie.
With Mincberg and Clements out of the race, that leaves three tickets: Bijal Chhadva and Andrew Aubrey, Esque Dollar and Tameka Bradley and Brandon Faza and J.P. Murphy.
Only Dollar returned calls seeking comment on the disqualification Sunday. He said he didn’t know the details of the case, but he wasn’t surprised that a ticket had been knocked out of the election.
“Every year we have races and the rules get broken,” Dollar said. “If (the ERC) saw fit to put them out, we elected them, we picked them, I think we should support them.”
When asked if the disqualification cheapens the competition of the race, he said he tries not to pay attention to what happens to the other candidates, choosing instead to focus on his own campaign.
“I run a race like a horse with blinders on,” he said. “I run my race, and whatever happens happens. I don’t want to win just because everybody else drops out. But if I do, I’m not complaining. A ‘W’ is a ‘W.'”