It's Gordon McKernan's "G Guarantee" versus fellow Baton Rouge personal injury lawyer E. Eric Guirard's "E Guarantee" in a lawsuit that involves a mocking "big rig" television ad and claims of trademark infringement.
McKernan, whose popular television commercials show him atop an 18-wheeler with arms folded, isn't laughing about Guirard's latest TV ad that mocks McKernan by depicting a man bearing McKernan's likeness falling off a big rig while filming a commercial spot.
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In fact, McKernan is asking a federal judge in Baton Rouge to issue an order prohibiting the formerly disbarred Guirard from using McKernan's image and likeness without authorization in commercial advertisements for legal services.
McKernan, who trademarked his "G Guarantee" and "Get the G Guarantee" slogans in 2014, is also asking that Guirard be prohibited from using his own "E Guarantee" and "Get the E Guarantee" catch phrases that Guirard had used prior to his disbarment.
McKernan, in a federal lawsuit filed Friday, accuses Guirard of trademark infringement and misappropriation of identity. The suit seeks monetary damages.
Guirard said Wednesday he was reserving comment on the lawsuit.
"I have just been made aware of its filing, and I have yet to have an opportunity to review it and all pertinent law," Guirard said in an email in response to a request for comment on McKernan's suit. "I am well aware of and have utilized my own intellectual property rights since I started by first law firm in 1994. I always strive to protect my own rights and the valid intellectual and trademark rights of others."
McKernan and one of his attorneys, Jones Walker partner Michael Leachman, declined to elaborate on the suit, which has been assigned to Senior U.S. District Judge James Brady.
The Guirard commercial McKernan complains of depicts an attorney-actor sharing McKernan's likeness and includes the following dialogue from Guirard as he stands on top of an 18-wheeler:
"I'm injury lawyer E. Eric Guirard. If you've been in an accident, I don't know — car wreck, big slip, falling off an 18 wheeler while shooting a TV commercial, I can h... G whiz. Are you OK? So, don't fall for a copycat. Get an original — E. Eric Guirard. E Guarantee.com. Get the E Guarantee. I'm injury lawyer E. Eric Guirard. No real lawyers were hurt filming this commercial."
The man bearing McKernan's likeness and wearing a suit supposedly plunges off the truck and falls to the ground as Guirard is speaking.
McKernan's suit contends Guirard "intentionally and willfully" misappropriated McKernan's identity. Guirard, according to the suit, is "clearly mimicking" McKernan's commercials.
As for their respective "Guarantee" slogans, McKernan claims the two lawyers trademarks are "confusingly similar" and "likely to cause confusion in the marketplace."
McKernan has been using the "G Guarantee" trademark since 2014. He states on his law firm's website, "I'll win your case or you don't owe me a dime. No costs, no expenses, no fee. Nothing."
Guirard used his own"E Guarantee" slogan from 1995 until May 2009, touting his law practice with billboards and frequent radio and TV ads. Guirard guarantees on his firm's website that, "You get more money than the lawyer" and will receive exceptional service.
It was in May 2009 that the Louisiana Supreme Court disbarred Guirard and his then-partner, Thomas R. Pittenger. Their law licenses were revoked because of their "business first" model, which included rewarding the firm's non-lawyers for settling cases as quickly as possible, according to the high court's disbarment order.
"Having the case managers negotiate and settle the cases was a misrepresentation by omission to the clients, particularly considering that clients were given the 'E Guarantee,' which implied that a lawyer, not a case manager, would handle the case," the Supreme Court stated.
Pittenger's law license was restored in 2015. Guirard's license was given back to him in 2016.
Nearly six full years after the Louisiana Supreme Court disbarred the Baton Rouge personal-i…
McKernan contends that the "E Guarantee" trademark officially went abandoned in 2012, and that Guirard — while still disbarred — filed an intent-to-use trademark application for the "E Guarantee" slogan in 2014. He began once again using the "E Guarantee" slogan earlier this year, the suit says.
In Guirard's intent-to-use trademark application, the lawsuit says, Guirard stated he "believes that … 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 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,'' the suit alleges.
McKernan claims he is entitled to recover Guirard's profits, as well as damages sustained by McKernan, as a result of Guirard's alleged infringement conduct.
Guirard's April 2016 readmission by the Supreme Court also came with a two-year period of supervised probation, which does not end until the spring of 2018.