An attorney once told me that the definition of “gross injustice” is when 144 lawyers are in a plane crash and they all survive.
So when arguably the most notable ambulance chaser in the city sues the second-most notable ambulance chaser in the city, it gets lots of attention from people desiring to see a couple of self-promoting legal gladiators utterly destroy each other. It’s one of those instances in which most folks want to see both sides lose in a devastating manner.
Nevertheless, like the bumper sticker says, if you want peace, work for justice. That’s why, despite the summer heat and humidity of South Louisiana, I’m willing to don my black robe and arbitrate the case of Gordon McKernan v. E. Eric Guirard in the court of public opinion.
McKernan filed suit in federal court against his fellow personal injury attorney, accusing Guirard of trademark infringement and misappropriation of identity. In addition to seeking monetary damages, the man seen on approximately 90% of the billboards in Louisiana also has asked a federal judge to prohibit the formerly disbarred Guirard’s unauthorized usage of McKernan’s image and likeness in advertisements.
They might disbar him again, but he wouldn’t be the first guy to have his career ended by an inappropriate joke.
The impetus for the suit seems to be what I think is a pretty funny TV commercial for Guirard’s law firm that mocks McKernan’s affinity for shooting commercials atop 18-wheelers.
“I’m injury lawyer E. Eric Guirard,” the former standup comedian says in the ad. “If you’ve been in an accident — I don’t know, falling off an 18-wheeler while shooting a TV commercial …” (A guy who looks like McKernan crashes to the ground from atop a big rig next to Guirard.) “G WHIZ! Are you OK? So, don’t fall for a copycat. Get an original — E. Eric Guirard.”
The closing frame mentions Guirard’s website, EGuarantee.com (which reinforces his slogan, “Get the ‘E’ Guarantee”) and includes a disclaimer that “No real lawyers were hurt while filming this commercial.”
The plaintiff contends the defendant “intentionally and willfully” misappropriated his identity and further alleges Guirard’s ad is “clearly mimicking” McKernan’s. However, for obvious reasons, I am sympathetic with the defendant and see no problem with his surprisingly clever use of parody, which, last time I checked, is protected by the First Amendment.
Of course, I’m a total noob in regard to how the state bar association looks upon those sorts of things. They have no say in this suit, but Guirard’s readmission to the bar last year by the state Supreme Court came with a two-year probationary period that doesn’t end until April 2018. They might disbar him again, but he wouldn’t be the first guy to have his career ended by an inappropriate joke.
I do find the behavior of these two lawyers, in light of their apparent appreciation for parody, rather intriguing.
For instance, The Red Shtick has published two such articles about McKernan. Last June, our esteemed Tony Swartz reported on the notorious marketer launching a fleet of giant promotional G’s to hover via drones over Baton Rouge traffic. And earlier this year, Robert Rau broke an exclusive story detailing McKernan inking a deal with LSU to double the font size of the G in Tigers.
In both cases, McKernan sent us a sweet, sweet load of Gordon McKernan law firm swag. I’m talking all sorts of primo promotional goods with his logo on them. Not just nice pens, keychains, books, and tote bags, but I’m talking comfortable T-shirts (not that cheap crap), CoolMax running hats, and — my favorite that I use all the time — a kickass silicone oven mitt. Needless to say, the man appreciates free media exposure.
Meanwhile, we’ve featured Guirard in twice as many articles. We covered the release of his “American Conservative Rap” album Tea Party Anthem, his 2015 female empowerment music video “Trouble, Time and Money,” and the reinstatement of his law license. Plus, I personally reviewed his illustrated literary classic 101 Uses for Fat People.
The guy who’s suing a guy for parodying him in a commercial sent us lots of awesome free stuff when we parodied him, while the guy who parodied the guy suing him for parodying him has yet to demonstrate a single iota of appreciation for us parodying him.
Care to guess how much swag we got from Guirard over the years? We haven’t received so much as a “Go Fuck Yourself” from that ungrateful S.O.B. This doesn’t bode well for Guirard with regard to my pending verdict.
So the guy who’s suing a guy for parodying him in a commercial sent us lots of awesome free stuff when we parodied him, while the guy who parodied the guy suing him for parodying him has yet to demonstrate a single iota of appreciation for us parodying him.
In addition to indicating Guirard likes to dish it out but not take it, one could also interpret this as a signifier that a grown-ass man who thought an American Conservative Rap album was a good idea needs to work on his comedic timing and understanding his audience.
Case in point: A friend’s sister who worked as a barista said Guirard would regularly come into Starbuck’s — during the peak of their morning rush when the place was slammed with caffeine-starved customers waiting for their daily fix, mind you — and order an “E.” As in, he would walk in and say, “I want an E.”
What’s an E, you ask? Well, everyone named E. Eric Guirard knows that’s a grande black coffee with two sweeteners.
Yes, a supposed adult calling himself “E. Eric” who drove a Jaguar with the license plate “EEEEEEE” and had a matching phone number for his law firm (before he was disbarred) reportedly thought it would be funny — or cute, or smart for business, because, you know … branding — to walk up to the counter of a super-busy coffee shop and ruffle an already stressed barista by ordering his initial.
Every. Damn. Day.
What service industry worker’s day wouldn’t be absolutely brightened by such a pleasantly jovial exchange?
Nevertheless, I find nothing wrong with the defendant mimicking the plaintiff’s ads and image since it clearly was a case of constitutionally protected parody. As for the defendant’s use of the “Get the ‘E’ Guarantee” slogan, that’s an entirely different manner.
As McKernan laid out in his lawsuit, Guirard used the “E Guarantee” trademark in ads from 1995 until his law license was revoked in 2009 for rewarding his firm’s nonlawyers for settling cases as quickly as possible. In 2012, according to the suit, Guirard’s federal “E Guarantee Trademark officially went abandoned.”
In January 2014, McKernan’s firm applied for the “G Guarantee” trademark and began using the slogan “Get the G Guarantee,” the suit states. “At the time of the adoption of the G Guarantee Trademark in 2014,” the lawsuit contends, “no other attorneys or law firms in Louisiana were utilizing a single letter with the phrase ‘Get the [ ] Guarantee.'”
Nine months later, Guirard made a decision worse than that time in 2005 when he recorded “Tigers to the Top.”
Guirard’s ignorance of McKernan’s use of “G Guarantee” in his ads is as plausible as the idea of McKernan having sex with Guirard’s ex-wife on TV and Guirard not knowing about it.
“On September 26, 2014, while still disbarred and therefore unauthorized to practice law, Mr. Guirard filed in his personal capacity an intent-to-use trademark application with the USPTO for the trademark ‘E GUARANTEE’ to be used for ‘legal services,’” the suit claims.
Huh. Guirard filed an intent-to-use trademark application with the U.S. Patent and Trademark Office for a slogan he planned to use for “legal services” over a year before the Louisiana Attorney Disciplinary Board’s Hearing Committee would even hear his request (October 22, 2015, per the suit) to be readmitted to the legal profession? That seems rather presumptuous. In fact, it’s about as presumptuous as walking into a Starbuck’s, placing a drink order using a single letter, and expecting the barista to know what the hell you want.
Or, if you want to put it in legal terms, while also calling out Guirard’s Johnny-come-lately trademark game, as McKernan did in his suit …
Despite being statutorily prohibited from practicing law, Mr. Guirard signed a declaration required by 15 U.S.C. §1051(b) for new trademark applications when filing the 2014 E Guarantee Trademark Application, declaring that he “is entitled to use the mark in commerce” and that he “has a bona fide intention to use … the mark in commerce on or in connection with the goods/services in the application” as of the application filing date. (Emphasis added). The Declaration further stated that Mr. Guirard “believes that to the best of [his] knowledge and belief, no other person has the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion or mistake, or to deceive.” Mr. Guirard further declared that “all statements made of his/her own knowledge are true.” …
Upon information and belief, Mr. Guirard had knowledge of Gordon McKernan Injury Attorneys’ adoption, use and application for registration of the G Guarantee Trademark at the time Mr. Guirard submitted his 2014 E Guarantee Trademark Application.
I concur. Guirard may be an ass clown, but he’s not stupid. If McKernan had been using the “Get the G Guarantee” slogan throughout 2014, you know damn well Guirard knew about it. Guirard’s ignorance of McKernan’s use of “G Guarantee” in his ads is as plausible as the idea of McKernan having sex with Guirard’s ex-wife on TV and Guirard not knowing about it.
Honestly, the man seems to love that “E Guarantee” slogan more than any woman. He broke up with E Guarantee, then realized he couldn’t live without her. It was like a part of him was missing. So he went back to E Guarantee to get her back into his life.
But by then, it was too late. Someone else had already found E Guarantee, lonely and abandoned, still reeling from the heartbreak caused by her former lover. That new someone picked up her discarded heart from the trash heap of dead trademarks, cleaned her up, and made a respectable slogan out of her.
She goes by “G Guarantee” now. She’d rather not talk about her troubled, former life as E Guarantee. That’s behind her.
Seriously, Guirard should’ve married his slogan instead of his ex-wife. Maybe then we’d live in a world where “Trouble, Time and Money” was never made.
Furthermore, where does Guirard get off calling McKernan a “copycat” in the commercial? Because McKernan hooked up with his ex-slogan? That’s not a copycat. That’s a man who knows a good slogan when he sees it, and knows better than to let it get away.
Besides, if McKernan really were a Guirard copycat, he’d have recorded an “American Conservative Hip-Hop” album and published a book titled 102 Uses for Fat People.
Well, I’m ready to rule.
In the case of McKernan v. Guirard, I judge that this will be a snippet from McKernan’s next big rig commercial …