What's in a Flame? Industry Says it Burns Only for Them

• Susan Phillips
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  Susan Phillips tells stories about the consequences of political decisions on people's every day lives. She has worked as a reporter for WHYY since 2004. Susan's coverage of the 2008 Presidential election resulted in a story on the front page of the New York Times. In 2010 she traveled to Haiti to cover the earthquake. That same year she produced an award-winning series on Pennsylvania's natural gas rush called "The Shale Game." She received a 2013 Alfred I. duPont-Columbia University Journalism Award for her work covering natural gas drilling in Pennsylvania. She has also won several Edward R. Murrow awards for her work with StateImpact. In 2013/14 she spent a year at MIT as a Knight Science Journalism Fellow. She has also been a Metcalf Fellow, an MBL Logan Science Journalism Fellow and reported from Marrakech on the 2016 climate talks as an International Reporting Project Fellow. A graduate of Columbia School of Journalism, she earned her Bachelor's degree in International Relations from George Washington University.

The Marcellus Shale Coalition wants to keep their flame burning. The industry group recently contacted the organizers of Shale Gas Outrage through their website host with a demand to take down the “Outrage” flame for trademark violation. The Marcellus Shale Coalition has trademarked their blue and green flame as a logo for their annual Shale Gas Insight conference. They say the outraged fractivists have tread on their territory by taking their Insight flame and turning it into an outraged orange and red.

James Singer, an attorney with Fox Rothchild, explained in an email to Bluehost, which hosts the website of the group Protecting Our Waters, that the outrage flame does not constitute fair use.

“The derivative work appears on at least the following page: http://shalegasoutrage.org.  The use has not been authorized by MSC, and the purpose and character of the use on that page includes the solicitation of funds, which is not considered to be a fair use.”

Singer did not return our call for comment. But other copyright and trademark attorneys did. It turns out that the oil and gas industry is full of trademarked flames. Even Philadelphia Gas Works has a flame in their logo. And just because a group is raising money, doesn’t mean they’re not entitled to fair use.
“If you go into the trademark database,” said one attorney with 30 years of trademark and copyright experience, “everybody’s got a flame. It’s what you use to identify gas. So the question becomes, is it clear when you go to the site that it’s an attack.”
The Shale Gas Outrage flame was taken down off the site. But just below the flame was, and still is, a yellow banner that reads “stop fracking now.” Photos on the site include protest signs, and one has a backdrop that reads “Fracking poisons our air, our water, and us.”
This area of the law can be murky. But if the trademark is clearly used for parody or an attack, fair use is sanctioned. The question becomes whether or not the use of the trademark is confusing to a reader. In other words, if a person seeing the flame on the shale gas outrage site thinks the information on the site may be endorsed by the Marcellus Shale Coalition, then the industry group may have a case.
A noted case that discusses this issue is People for the Ethical Treatment of Animals v. Doughney. Michael Doughney created a parody website www.peta.org, which, by clicking on the site, viewers saw the title “People for the Eating of Tasty Animals.” The animal rights group PETA, sued for trademark violation. The defendant said he was entitled to First Amendment protection of free speech. A federal court ruled in favor of the animal rights group and found Doughney’s website was not fair use.

“Defendant is guilty of “blurring” the famous PETA Mark because (1) Defendant used the identical PETA Mark to mentally associate PETA.ORG to the PETA Mark; and (2) such use caused; (3) actual economic harm to the PETA Mark by lessening its selling power as an advertising agent for PETA’s goods and services. Doughney’s site included materials antithetical to the purpose and message of PETA in that “PETA.ORG” included links to commercial enterprises engaged in conduct directly contrary to PETA’s animal protection efforts.”

Shale Gas Outrage did take down the flame on advice from an attorney. But organizer Iris Marie Bloom says the effort is an infringement on their First Amendment right to free speech. Bloom says the industry is acting as a “bully.”
Patrick Creighton, spokesman for the Marcellus Shale Coalition, responded to the “bully” charge in an email:
“We are a nation of laws. If someone used NPR’s logo, they’d receive a similar notice from your lawyers.”

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