July 12, 2012
President Obama’s reelection campaign is suing to prevent Demstore.com, a purveyor of political paraphernalia, from selling merchandise with the Obama rising sun logo. A recent story in the Washington Post describes the issues and the stakes. As well as reminding us that there is no constitutional wall of separation between politics and commerce, the lawsuit reveals some noteworthy differences between the President and the Republican nominee, Mitt Romney.
Back in 2008, Obama For America (OFA), a nonprofit corporation, registered the sunrise logo as a trademark with the United States Patent & Trademark Office (USPTO). Federal registration is evidence of the owner’s exclusive right to use the mark in commerce, and this is the basis for OFA’s action against Demstore.com. On June 1 OFA filed suit in the federal district court for the District of Columbia and on July 9 the court granted OFA’s request for a preliminary injunction, enjoining Demstore.com from using the trademark on its merchandise.
What high-minded political principle is at issue here? Money. Tens of millions of dollars.
According to OFA’s complaint, the “sale of merchandise featuring the Rising Sun Trademark makes up a significant portion of OFA’s revenue [and]… each time a supporter makes a relatively small purchase on the website, OFA obtains that individual’s contact information, which OFA can then use to reach out to that individual repeatedly to seek further donations and further opportunities to promote the Campaign.” By selling rising sun products, Demstore.com is allegedly free-riding and eating into OFA’s market share.
The OFA trademark registration (number 3541038) covers several classes of goods and services, among them “baby clothing, namely onesies.” Mitt Romney’s trademark application (number 77231852) refers to onesies as “infant and toddler one piece clothing.” At most this distinction may reflect the differences in the respective campaigns’ communication styles. But the biggest difference between Obama’s approach to trademark rights and Romney’s is this: Obama saw his application through to the end; Romney abandoned his.
“[A]n eagle-like bird with a head and beak and body that resembles a billowing flag” is how Romney’s 2007 application described the candidate’s trademark. Romney’s application cast a wide net, attempting to register the mark for 14 separate classes of goods and services. However, it seems that in stating that it would use the mark on products as diverse as money clips, deck chairs, umbrellas, shot glasses, cocktail shakers, hair bows, golf tees, drinking water, and, of course, “infant and toddler one piece clothing,” the Romney campaign may have over-reached. First they failed to file an Allegation of Use in connection with all 14 classes (a requirement for intent-to-use applications), and then failed to respond to the USPTO’s letter on the subject. So in October 2008, the USPTO deemed Romney’s application abandoned.
One campaign rigorously upholds its trademark rights. The other makes sweeping claims that it cannot support. Intellectual property aside, does this tell us something else about the candidates?