R.J. Reynolds joins Kanawha smoking-ban fray

CHARLESTON, W.Va. -- The R.J. Reynolds Tobacco Co. is demanding that a Charleston bar owner remove a giant inflatable "Winston" cigarette pack replica outside the Blackhawk Saloon.

Kerry "Paco" Ellison has used the mock cigarette pack to protest Kanawha County's expanded smoking ban.

R.J. Reynolds alleges that the inflatable advertisement is harming the company's reputation because Ellison also is using it to advertise "unlawful smoker nights" and "encourage patrons of your bar to violate the county's smoking ban," according to a letter sent to Ellison by the tobacco company's chief lawyer.

"Obviously, it's a matter we take very seriously," said R.J. Reynolds spokesman David Howard, who declined additional comment Monday.

Ellison said he wasn't sure whether he would leave the inflatable advertisement up or take it down.

"It just baffles me that, no matter what I do, somebody goes and gets a bigger dog," Ellison said. "At this point, the fight continues."

Last month, the Kanawha-Charleston Health Department asked the West Virginia Attorney General's Office to investigate the inflatable cigarette pack, which is visible to motorists on Interstate 64.

Health officials alleged that Ellison violated the 1998 Tobacco Master Settlement Agreement that limits cigarette marketing. The Attorney General's Office subsequently alerted R.J. Reynolds about Ellison's inflatable.

R.J. Reynolds, which makes Winston cigarettes, was one of the four tobacco companies that reached the master settlement with attorneys general in 47 states, including West Virginia.

"Demand is hereby made that you remove the Winston advertisement from outside your bar and that you cease all public displays of that advertisement," wrote David Shirlen, managing legal counsel for the Winston-Salem, N.C.-based tobacco company.

R.J. Reynolds threatened to take additional action - and seek monetary and punitive damages - against Ellison, if he refuses to take down the blow-up mock Winston pack.

"This matter is a very serious one for you, and it is sincerely hoped that you will avoid escalating this legal dispute," Shirlen wrote to Ellison in the Sept. 29 letter.

Ellison, who received the letter Monday, has concealed the last four letters of "Winston" with strips of duct tape, and used additional tape to construct the words, "with us," so that the inflatable pack now reads, "Win with us."

"I don't think it's violating anything," Ellison said. "I like to stretch things, work on the edge."

In the letter to Ellison, the tobacco company also cites a Charleston Gazette article that quotes Ellison as saying the inflatable cigarette pack was retrieved from a Dumpster at the Charlotte Motor Speedway.

R.J. Reynolds said the "advertising piece would have been destroyed years ago but for a theft from a Dumpster," and Ellison's use of the inflatable "constitutes an unlawful misappropriation of [R.J. Reynolds'] intellectual property rights in the Winston mark, pack and advertising."

"Use of the Winston name and advertising creates the likelihood that the public will be confused, mistaken or deceived into the belief RJRT is involved with your bar or actions; that your bar or actions are endorsed by RJRT; or that there is some affiliation, connection or sponsorship between your bar or actions and RJRT," the company alleges.

For several weeks last month, the giant Winston advertisement was deflated and hanging from the side of the Blackhawk Saloon because a fan used to blow air into the inflatable was broken.

Ellison fixed the fan and inflated the mock cigarette pack on Sept. 25, a day after he found out the Health Department asked the Attorney General's Office to investigate.

Ellison said the inflatable was passed from person to person over the years, and a Blackhawk customer gave it to him as a gift last summer.

"It's in my possession," Ellison said. "I own it now."

Ellison said no one from the Attorney General's Office has talked to him about the air-blown advertisement.

During the past year, the Health Department has filed six criminal complaints against Ellison in Kanawha County Magistrate Court, alleging that he repeatedly has violated the county's expanded Clean Indoor Air Act.

The regulations, which took effect in July 2008, prohibit smoking in bars, gambling parlors and the Tri-State Racetrack & Gaming Center in Nitro.

Ellison has openly defied the smoking ban.

Last month, a Kanawha County Circuit Court judge upheld a previous conviction against Ellison in Magistrate Court, ruling that the bar owner passed out ashtrays and allowed customers to smoke. Ellison plans to appeal the verdict and $200 fine. He wants a jury trial.