The University of Arkansas at Fayetteville threw penalty flags in 2010 and 2012 after political campaigns used Razorback-themed images without the school’s permission.
But they’re probably not going to blow the whistle on a commercial for Bruce Westerman’s congressional campaign.
Westerman, a Hot Springs Republican and the Arkansas House majority leader, released his first 30-second television advertisement Wednesday in his bid for the Republican nomination for the 4th Congressional District seat.
The advertisement features pictures of Westerman throughout his life and career, including a photo of Westerman wearing his Razorback football uniform at the 1990 Cotton Bowl. On Wednesday, several media outlets questioned whether the candidate had stepped on the university’s trademark as two other political advertisements had in years past.
“I don’t have official word [from] the attorneys yet, but the preliminary opinion is the ad is OK because that’s a personal photo and factual statement and does not imply that the U of A is endorsing him,” UA Fayetteville spokesman Steve Voorhies wrote in an email Wednesday.
Westerman said between committee hearings Wednesday that his campaign had a conversation with university attorneys in August about the image.
“We had taken the precautions and I was aware of what had happened before,” he said. “I didn’t want to take away or tarnish anything at the university so I had made sure it was OK to use a personal photo beforehand.”
Westerman, who graduated from UA Fayetteville with an engineering degree in 1990, was a four-year walk on for the Razorbacks. The 1990 media guide for the team lists him as a 5-foot-9-inch, 188-pound free safety.
He said Wednesday that he didn’t play during the New Year’s Day Cotton Bowl game in Dallas against the University of Tennessee, where the Razorbacks lost 27-31. In fact, he said he didn’t get a lot of field time during his four years on the team, but that isn’t why he chose to use the photo taken by his roommate’s brother before the game started.
“To me that photo tells a story and reminds me of all the time, dedication and hard work it took to be a walk-on and an engineering student at the same time,” Westerman said. “What the photo doesn’t show are the all-nighters I’d pull at the computer lab and then go straight from there to lift weights, eat breakfast and go to class. And I hardly got to plan, but it was worth it and I would do it again. To get to run through the ‘A’ and hear the fight song, I think it’s every little boy’s dream in Arkansas to get to do that.”
In 2010, the university asked U.S. Sen. John Boozman, then the 3rd District U.S. representative, to withdraw a television ad for his Senate campaign that featured footage shot in front of the university’s football stadium and heavily focused on Boozman’s 1970s football career playing offensive line for the Razorbacks.
That advertisement shows a photograph of Boozman as a football player, as well as a red jersey and a Razorback helmet in separate shots. Boozman speaks over several of the shots saying he learned to “stand my ground, hold the line” in the stadium and he would do the same in Washington, D.C.
The university reached an agreement with Boozman’s campaign to pull the advertisement because school officials said it could imply an endorsement from the university or its athletic department.
In 2012, a flier released a few days before the November election by a national Democratic group raised some hackles at the university and spurred a cease and-desist letter from its attorneys.
The Democratic Legislative Campaign Committee sent out a mailer urging voters to “stand up for the U of A” and included a cartoon drawing of a hog and a photograph of Old Main - the oldest building on the Fayetteville campus. The mailer was aimed as an attack on Rep. Charlie Collins, R-Fayetteville, who it said had voted against increases to the university’s budget.
Because that flier was released so close to the election, the university did not seek further legal action.
Trademark experts and the university agreed Wednesday that Westerman’s use of his personal photo was different than the other two cases.
“So from a consumer perspective a trademark is established… to try to avoid confusion,” said Michael Singleton, assistant state director of the Arkansas Small Business and Technology Development Center.
He said that’s why businesses that sell tires or car washes can use the word Razorback in their names, while businesses like a sports equipment store or trainer can not, under the legal test for a trademark violation. But the bigger issue with campaign commercials is whether they imply an endorsement.
“Where I would draw the line between those two commercials is where Westerman uses an historical photo that is actually a photo of him in the uniform, Boozman maybe used additional images that were stock photos or others unrelated to his personal experience,” Singleton said, pointing out that those stock images rely on brand recognition.
“I can understand wanting to show that hometown, local connection with the Razorbacks, but from the university’s standpoint, you want to be careful of any perception of endorsement, which would be improper,” he said.
Arkansas, Pages 9 on 02/13/2014