Scott Baugh’s Attack Mailer Against Katherine Daigle is Full of His Trademarked Elephant Dung




This period of the campaign just before the election is sometimes called “the silly season” — and OC GOP Chair Scott Baugh is living up to that billing.

Throwing Elephant Dung

No, those aren’t coconuts: OC GOP puts on its gloves and brings out heavy ammunition to toss at Katherine Daigle for telling voters that she’s a Republican.

A mailer has gone out to Irvine Republicans under Baugh’s name purporting to make a legal argument that Irvine Republican Mayoral candidate Katherine Daigle is infringing on the Republican National Committee’s trademark.  It’s full of elephant dung.  It’s actually a simple political attack, without legal basis, to try to protect the hide of endorsed Mayoral Candidate — endorsed by both the county Republican Party and by the avaricious developer Five Point — Steven Choi.  Choi has been facing trouble based on his two-faced, two-front, battle to simultaneously be FOR the Great Park Veterans Cemetery to most of the public while his allies promise that he will try to UNDERMINE AND REVERSE the project in communications intended solely for Chinese (and possibly other East Asian) voters.  So here comes Baugh, desperate to change the subject.

OC Political reports that Baugh has sent out a political mailer purporting (and massively failing) to make a legal argument that Daigle has engaged in “deceit” — an “unethical and illegal” act of “trademark infringement”– by allegedly using the RNC’s trademarked elephant logo.  I’ll make an actual legal argument in response: Baugh’s assertion of “deceit” is itself defamatory.  He knows that it’s false — but he wants you to believe it’s true, for the RNC’s (and its anti-Veteran developer benefactor’s) own purposes.

Daigle is not using an illustration of an elephant to tell voters that she is the endorsed Republican candidate; she’s using it to tell them that she is a Republican.  THAT is what Baugh apparently can’t stand, out of fear that she may take votes from Republicans who DON”T favor developers over the interests of veterans — which I’m betting is most of them — away from Choi.

If this were an actual trademark claim, then after the demand letter of Oct. 23 — which followed a previous letter sent out by Gail Eastman for an actual act of trademark infringement against the GOP — Daigle would have an opportunity to cure the alleged infringement.  While there was no alleged infringement here, Daigle went out and made it clear that she was not trying to make illegal use of the RNC logo by going out painting out the logo’s distinctive stars on her signs.  THAT is quite an act of remediation!  Did we see a second letter to Daigle arguing that this logo — now obviously even less like the GOP’s trademark — continued to infringe?  No — instead we saw a political flyer, because the only case that the official Republican Party has to make about one of its members running for this non-partisan office is political rather than legal.

As Daigle has pointed out, the Republican National Committee’s own Chief Counsel said that what Daigle did is OK.   Here’s what then-chief counsel Sean Cairncross said about use of their logo at the time of a previous trademark dispute:

“Our elephant is specific. It’s stylized, it’s blue and red, it has three stars across its back that are tilted.”

“If you want to say ‘GOP’ and design an elephant that’s similar, want to design an elephant that’s not precisely the same as ours, that’s fine.”

“They’re using that precise elephant.”

Game, set, and match!  Other commenters, like Matt Cunningham in his desperate defense of Gail Eastman’s ACTUAL copyright infringement, would go much further than this, in comparing a three-star vs. a two-star red-white-and-blue elephant logo:

 The one with three stars is a trademarked logo of the Republican National Committee. The logo with two stars is not, and can be used by anyone. The “Continuing the Republican Revolution” political slate mailer, for example, incorporates the two-star elephant into its logo. Whether it has three or two stars — or one or four, for that matter, the average voter sees a red-white-and-blue elephant and thinks “Republican.”

In mid-October the Eastman campaign sent out this[omitted here]:

A fairly typical mailer for a Republican candidate to send out; and she is endorsed by the Conservative Republicans of California. However, her consultants mistakenly used the three-star, rather than two-star, GOP elephant logo, although the mailer makes no explicit or implicit claim that Eastman is endorsed by the Republican Party of Orange County. It states, truthfully that she has the endorsement of Republican leaders and conservative organizations.

In other words, Cunningham said that use of the exact three-star full-color same-shape logo is OK because use of a two-star full-color same-shape logo would have been OK.  (He presumably has no way of knowing that her consultants acted “mistakenly.”  Yeah, sure.)   I’m not even making that sweeping of an argument.  I’m saying that when you use a pure white, altered-shape version of the elephant — and then when you are challenged you remedy any violation by painting out the stars altogether — only a raving demagogue would complain that you’re still violating copyright law.

But, again, this mailer is not a legal argument, but a political one.

Here’s how I know that it isn’t a legal argument: in trademark infringement claims, you can’t pick and choose when you enforce.  You have the option of either licensing the use of your mark to someone or you are supposed to use your best reasonable efforts (as I recall that’s the gist of the actual standard) to get them to stop.  What you can’t do is take two people — Gail Eastman and Katherine Daigle — where EASTMAN’S VIOLATION IS MUCH WORSE BECAUSE SHE WAS TRYING TO IMPLY PARTY ENDORSEMENT, and say “oh, I’m only going to go after Daigle.”  That’s “picking and choosing.”

If they want to pretend that they have any legal claim at all against Daigle, then then had better come out with a mailer against Eastman too.  But you won’t see that, because Eastman — like Choi, but unlike Daigle — is also connected to powerful development interests.  What the GOP’s surprisingly strenuous effort to help bolster Steven Choi suggests is that Stephen Choi may well be in trouble.  Certainly, fair-minded Republicans who are aware of the facts aren’t going to like the GOP’s heavy-handed attempt to squelch Daigle’s First Amendment right to identify herself as a Republican!

At any rate, there’s a good solution here: any Republican who thinks that no one but the party-endorsed candidate should be able to run for office in a non-partisan race will presumably want to vote for Choi. Anyone who thinks that a Republican of long standing should be able to run when the party’s endorsed candidate is wholly bought by developers, and who wants to resist this sort of heavy-handed sophistry, should vote for Daigle.

Here’s the heavy-handed mailer from Scott Baugh, proving that desperate times lead to desperate mailers.  This is how Scott Baugh’s GOP treats Republican candidates who proudly want to proclaim their party affiliation, but who don’t fall into line with the party’s pro-development interests and who aren’t protected by big contributors: they get defamed using Party money.  Shame on Baugh for his lying hypocrisy.



About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)