No False Designation Claim Against Axelrod Memoir

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By Anandashankar Mazumdar

Dec. 3 — A political consultant who claims to be a mastermind behind the 2003 re-election of Philadelphia Mayor John F. Street could not make a false designation of origin claim against consultant David Axelrod for claiming credit for a particular campaign strategy, the U.S. District Court for the Eastern District of Pennsylvania ruled Dec. 1.

A false designation claim under the federal trademark statute must be related to the misrepresentation of the origin of goods and services, the court said. And there was no plausible argument that Axelrod was promoting political consulting services with is book, as opposed to book sales, the court said.

Axelrod was chief strategist for the Obama campaign in 2008. Five years before that, he worked on Street's re-election campaign.

In early 2015, Axelrod published a memoir, “Believer, My Forty Years in Politics.” The book included stories about the ultimately successful 2003 Street campaign. At one point in the campaign, it was discovered that the Federal Bureau of Investigation was conducting a corruption investigation and was using listening devices to conduct surveillance on the Street administration.

The Street campaign responded by accusing the Bush administration of engaging in political dirty tricks to help Street's Republican challenger.

Democratic consultant Frank Keel of Spring House, Pa., claimed to be the mastermind behind the “Republicans Did It” strategy. Keel asserted that in “Believer,” Axelrod falsely claimed credit for the response.

Keel thus sued Axelrod and his publisher, alleging false designation of origin in violation of Section 43(a) of the Lanham Trademark Act of 1946, 15 U.S.C. §1125(a), and unfair competition under Pennsylvania state common law.

Axelrod moved for dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim for which the law offers a remedy.

The kind of claim that Keel was making is known as a “reverse passing off” claim. In other words, Keel alleged that Axelrod indicated that he was the source or origin for goods and services that had actually been provided by Keel.

In order for Keel to make such a claim, he must show that Axelrod was making a “use in commerce,” the court said; that is, that he was using his memoir to sell or promote goods or services.

The passage from “Believer” identified by Keel did not, however, constitute a promotion for Axelrod's consulting services.

“The ‘Believer' excerpt is more akin to a narrative of an event in Axelrod's career,” the court said.

Also, the court said that Axelrod's purpose in writing and promoting his book was to sell the book, not to promote his political services in a manner governed by the Lanham Act. Indeed, the only promotional acts identified by Keel were book signings.

“If attending book signings alone were factually sufficient to plead a ‘reverse passing off' claim, any number of authors could be held liable under the Lanham Act as commercial promoters or advertisers for mischaracterizations or embellishments of past services in their books,” the court said.

The court's ruling was issued by Judge Mitchell S. Goldberg.

Keel was represented by Bochetto & Lentz P.C., Philadelphia. Axelrod was represented by Fineman Krekstein & Harris P.C., Philadelphia.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at amazumdar@bna.com

To contact the editor responsible for this story: Mike Wilczek in Washington at mwilczek@bna.com

Text is available at: http://src.bna.com/bnv.