Duck gives underdog electoral boost

An online cartoon portrayal of Ohio Governor Bob Taft has survived an injunction levelled against it by AFLAC, which accused the political spoof of infringing its trademark rights. Perversely, the AFLAC injunction has only given Tim Hagan - the Democratic candidate behind the TaftQuack campaign - much-needed publicity in the run-up to tomorrow's election.

Hagan decided to use an internet marketing campaign as a cheaper alternative to television advertisements. His website features a cartoon character sporting Taft's head resting atop a duck's body. The Taft-like duck occasionally flaps its wings and screams "Taft Quack" in a style similar to the AFLAC's television advertisements, which feature a duck that flaps its wings and screams "Aaaaa-Flaaack".

AFLAC was not amused and filed suit against the Hagan campaign in federal district court in Cleveland seeking to protect its investment in its duck through an injunction. US District Court Judge Kathleen O'Malley denied AFLAC's motion for a temporary restraining order on 'TaftQuack.com', holding that Hagan's internet marketing is political speech protected by the First Amendment. On appeal, the federal circuit court ruled that there was no likelihood of confusion and that the non-commercial nature of the site protected it from trademark claims.

The outcome of tomorrow's election remains to be seen, although a member of the Hagan campaign team claims that the TaftQuack duck has helped to close the polling gap by eight to 11 percentage points. In a fitting riposte, the Taft campaign has responded with its own internet cartoon character 'Taxin' Tim', a cigarette-smoking character that resembles Tim Hagan, with a duck looking over his shoulder.

Douglas Wood and Linda Goldstein, Hall Dickler Kent Goldstein & Wood LLP, New York