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No Messing Around With Texas' Slogan

The state is going after illegal use of the phrase, a move one expert calls 'absurd.' Besides, a Western-wear firm got the trademark first.

July 06, 2004|Lianne Hart | Times Staff Writer

HOUSTON — Don't mess with Texas. Seriously. Because if you do, a word of warning may arrive in the mail.

The phrase "Don't Mess With Texas" is trademarked by the state Department of Transportation as part of its litter prevention campaign, you will be told. "We request that you cease and desist using the 'Don't Mess With Texas' mark for any purpose."

In the last year, 23 such letters have been sent to retailers who have used the slogan illegally, and that's just scratching the surface. Hundreds of items -- including T-shirts, knives and breath mints -- have carried the phrase since the anti-litter campaign was launched in 1986.

The Lone Star State has had enough.

"We're not any different from any other company that has a slogan or brand," said Doris Howdeshell, director of the Department of Transportation's travel section. "This is an effort to control the dilution of the meaning of the slogan. We want people to understand that we're talking about litter prevention. We're not saying: 'I'm a macho man.' "

But the push to make that distinction comes way too late, said Siva Vaidhyanathan, a New York University cultural historian and a former Texan.

"It's absurd to try to control it now. It has become a stock phrase, part of the daily life of Texas," he said. "The state of Texas cannot be surprised or alarmed that people are using this phrase for something other than litter control. The highway department is running against the tide of culture."

There is another problem: Someone else trademarked the phrase first. Richard Tucker, a South Carolina purveyor of Western-themed garments, filed an application to trademark his "Don't Mess With Texas" line in 1993. The Department of Transportation didn't get around to protecting its slogan until 2000. The parties are engaged in legal negotiations.

Legal experts -- here, at least -- think Texas is on solid footing. Because the anti-litter campaign was launched before Tucker introduced his clothing line, the state has superior rights to the verbiage, they said.

"People can't go out and register names and ... have a monopoly on them," said Cherry Hearn, a Dallas lawyer specializing in intellectual property. "In the United States, our trademark laws are not based on first to file, but who uses it first."

Besides, Hearn said, it isn't unusual for the same trademark to be issued twice.

Tucker's Dallas-area lawyer had no comment.

In Austin, state lawyers are working on a licensing agreement that will let merchandisers use "Don't Mess With Texas" for a fee. If taxpayers can recoup some of the millions invested in the anti-litter campaign, everyone wins, Howdeshell said.

"There are opportunities for retailers to make money. We just want them to use the official slogan, with the possibility of us making a little royalty off of it," she said.

As anti-litter efforts go, Texans have gotten a lot of bang for the buck. The campaign has been a long-running hit, starting with a television ad featuring the late guitarist Stevie Ray Vaughan playing "The Eyes of Texas," then drawling: "Don't mess with Texas."

Willie Nelson, Lyle Lovett, George Foreman and other Lone Star luminaries subsequently echoed the phrase in a series of ads "designed to get the attention of Bubba Six-Pack. The message was: 'Don't throw your beer cans in a ditch,' " said Tom Kelley, a spokesman for the Texas attorney general's office.

By 1992, the amount of trash thrown onto the state's roadways had dropped 72%. Over time, the slogan became part of the culture. Vaidhyanathan called it "the price you pay for having a good slogan."

Indeed, there are plenty of anti-litter catch phrases, but they seem to lack Texas' snap.

In Oklahoma, residents are urged to "Keep Our Land Grand." Bumper stickers in Knoxville, Tenn., proclaim, "Don't Throw Down on K-Town." And Cincinnati has gone with "Don't Trash the 'Nati."

Although the slogans are reminiscent of Texas', according to Department of Transportation lawyer Jennifer Soldano, she hasn't set her sights there. She's focusing on the next round of letters aimed at cutting off the supply of "Don't Mess With Texas" rip-offs at the source. "We're trying to locate the manufacturers."

In the meantime, Howdeshell is defending a crackdown that has made the agency look like a bully to some, she said.

"We've received a few e-mails saying we should get over ourselves," she said. "But we have an opportunity to make some money and put it back into litter prevention, which is the purpose of the whole program. It seems fair to us."

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