E. Eric Guirard allowed to resume practice of law in Louisiana _lowres

E. Eric Guirard

Here's a game to keep the kids occupied on your next long interstate drive. See which one can name the most personal injury attorneys whose pictures signal the approach of each new town. The ubiquitous Morris Bart counts for only one.

Competition in towns of any size is so lively that dueling billboards line the highway. So many earnest men in suits may distract motorists, who will at least know who to call in the event of a collision.

If such an accident should involve a big rig, so much the better. Advertising attorneys are forever on TV stressing they are the fearless souls who can bring the 18-wheelers down to size. This is such a common theme of lawyer advertisements that is obviously where the money is. Whether this signifies that truck drivers are an incompetent bunch, or the companies that employ them are an easy touch, who can tell.

Bar associations routinely banned lawyer advertising as beneath the dignity of their learned profession until 40 years ago, when the U.S. Supreme Court came out in favor of free speech. You still won't catch white shoe firms touting their services on TV, and they will look down their noses at those attorneys who wheel out happy clients clutching their settlement checks.

Declasse it may be, but it obviously works. Otherwise, lawyers wouldn't spend such vast sums on the cheesy ads that seem to appear every time you turn on the TV.

Personal injury lawsuits are so lucrative that two rival Baton Rouge lawyers have now taken themselves to court on their own behalf. Their fight over the big rig dollar brings some light relief to a grim business. The suit was filed after one of them mocked the other in a TV commercial, which must have been resented all the more because it was actually quite funny, although baseball does not get more inside than this.

In the commercial, E. Eric Guirard is filming a commercial when a Gordon McKernan lookalike falls to the ground next to him from atop a rig where he was supposedly filming a commercial. The real McKernan habitually bestrides rigs for commercial purposes.

At the end of his commercial, Guirard promises that “no real lawyers were hurt filming this commercial,” thereby no doubt setting many minds at rest. He also urges viewers to hire him and have no truck with the “copy cat” McKernan.

McKernan's response was to sue Guirard alleging “misappropriation of identity” and trademark infringement. It is a rare trademark case where the alleged violator can call the complainant a copy cat, but that may be fair enough here, because McKernan is asserting an exclusive right to an idea that Guirard came up with first.

McKernan claims that Guirard is making unauthorized use not only of his likeness but of his catchphrase. McKernan urges potential clients to “get the G-Guarantee,” while Guirard offers “the E-Guarantee.” There is no disputing the contention in McKernan's suit that much confusion is inevitable when two law firms target the same audience with virtually indistinguishable phrases, and no wonder that he wants to keep the line for himself.

But Guirard was way ahead, introducing the E-Guarantee in 1995 and featuring it in ads until he was disbarred in 2009 for fee-splitting and having nonlawyers in his firm handle cases. Guirard's trademark on E-Guarantee lapsed in 2012, and McKernan registered the G-Guarantee in 2014.

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Guirard got his law license back last year, although only with one vote to spare; three state Supreme Court justices found him insufficiently contrite.

By early this year, Guirard had dusted off the E-Guarantee and McKernan evidently fears it has been working its old magic. He is asking for damages of treble the business lost by the alleged violation of his rights as the “senior trademark user.” He also wants the court to stop Guirard using his “image and likeness” in commercials.

He is trying to deprive the public of the only fun to be had from lawyer commercials. He wants a guarantee that every lawyer commercial will be as boring as counting billboards.