Libertarian Party Logo Challenged as Misleading to “Consumers” in Orange County
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
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
We hope the Orange County Attorney’s Office finds a more productive use of its time moving forward.