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Sunday, November 05, 2006


For Immediate Release:
Tuesday, October 24th, 2006

Tells Utility to Go Jump in a Smoke Stack

Fight Over Stack-Smooching Latest Twist in Pollution Controversy

(Dallas---) Dismissing a TXU ultimatum to quit displaying its corporate logo on a smoke stack being kissed by a giant mock-up of Governor Rick Perry or be sued, longtime DFW-based anti-pollution group Downwinders At Risk today told the utility its threat was just so much hot air.

“Rick Perry’s Smoke Stack Love World Tour will stay on the road as is, and no amount of huffing and puffing by TXU attorneys is going to stop it,” said Becky Bornhorst, a Downwinders board member, referring to the group’s traveling, smoke-belching, sculpture by its official name. “There are some things TXU can’t buy, including the First Amendment of the US Constitution.”

Bornhorst, and fellow DAR board member Merle Roten, sent a letter to TXU today that rejected the company’s claims that use of the TXU logo on the group’s satirical float was a trademark infringement. Today was the last day of a ten-day period that TXU had given Downwinders to remove the logos, or face legal action.

At the center of the fight is a huge, eight-foot tall Styrofoam bust of Governor Perry puckering up to a smoke stack adorned with the company logos of DFW cement plant owners TXI and Ash Grove, as well as TXU. Mounted atop a hay trailer like a politicized Mardi Gras entry, the piece is head-turning commentary on what Downwinders says is Perry’s favoritism toward DFW’s oldest, dirtiest polluters. They complain that Perry is refusing to require modern pollution controls for Midlothian cement plants that could greatly reduce air pollution in DFW and dramatically improve public health. They accuse him of doing the same thing with new coal plants.

The group has vowed to travel the state with its rolling editorial cartoon, shadowing Perry as much as possible as long as he refuses to require modern controls on the cement plants.

As a result of the media attention given the float when it debuted outside the gubernatorial debate in Dallas on October 6th, TXU Executive Vice President and Corporate Counsel David Poole, sent a certified letter to Downwinders saying use of the company’s “starmark” trademark on the smoke stack that was the object of the over-sized Perry’s affections was against the law.

According to TXU’s letter, unless Downwinders removed the logo from its float, “TXU will have no choice but to protect its trademark from infringement and pursue all available legal remedies for the infringement and dilution of TXU’s registered trademark. Please be clear it is not TXU’s objective to have to bring litigation related to this matter but your immediate cessation of the infringement of TXU’s registered trademark is necessary for you to avoid TXU being forced to do so.” It gave Downwinders 10 days from receipt of he letter to reply in writing to the utility.

Today that reply came and it was a defiant refusal to back down by Downwinders. Citing what they said were “laughable” legal arguments by TXU, Dallas ACLU attorney Michael Linz and Washington DC-based Public Citizen attorney Paul Levy argued that the First Amendment trumps any claim of corporate exclusivity regarding the company’s logo.

“Really, TXU should be ashamed of itself for sending out this threat of litigation, presumably in the hope of intimidating citizens who want to participate in the political process,” said Levy in a letter to the utility’s General Counsel.

Added Jim Schermbeck, another Downwinders’ board member, “After 12 years of battling DFW’s largest industrial polluters, the EPA and the state of Texas, we’re not ones to run from a fight when there are fundamental principles at stake. And we’re sure as hell not giving up our American citizenship just because TXU says ’boo.”

With Downwinders’ formal rejection of its demands, the next move is up to TXU. Suing Downwinders would only draw more attention to the air pollution issue, and the utility’s closeness to the governor, at a time when it’s trying to portray itself as environmentally friendly and defend against charges of manipulating the market.

As of Tuesday, there haven’t been threats of lawsuits over the float from either TXI or Ash Grove, but Schermbeck said he wouldn’t be surprised if all three companies end up trying to take some sort of legal action.

“These guys are not used to hearing the word “no.” Especially since they’ve been dealing with Rick Perry for the last six years. Their first response will be to try and punish us uppity citizens, constitutional rights be damned. But at the hourly rates their lawyers charge, it would be a very expensive mistake.”

TXU’s October 11th letter threatening legal action can be viewed at:
Downwinders At Risk attorney Paul Levy’s October 24th response to TXU can be viewed at: