The US primary season leading up to the 2016 presidential election is well underway. Political candidates and their supporters have been quietly filing trademark applications with an eye on commercial opportunities. However, as several applicants have been reminded, US trademarks that invoke the name of a living individual cannot be registered without that individual’s written consent.

A name in a mark identifies a particular living individual if the person bearing the name will be associated with the mark by the consuming public. This typically arises when a person is so well known that the public would reasonably assume a connection between that person and the goods or services offered. A straightforward example is an application filed in 2007 for the phrase 'I can't wait to vote for Hillary'. The application was filed for “campaign buttons” and was rejected because it “consists of or comprises matter that may falsely suggest a connection with the individual Hillary Clinton”. The examining attorney stated that although “not connected with the goods applicant intends to provide under the proposed mark, Hillary Clinton is so famous that consumers would presume a connection” (see Section 2(a) of the Trademark Act, 15 USC §1052(a)).

Rejections under Section 2(a) apply not only when an individual's full name is used, but also when just a first name, surname, nickname, stage name, pseudonym or title is used, where the name would identify the particular individual. To overcome a Section 2(a) refusal, the applicant must submit written consent from the individual at issue to register the mark, or argue successfully that there is no association.

A recent example of a Section 2(a) rejection was seen in US Application 86/700,872. This application was filed for a stylised mark based on Bernie Sanders, a leading Democratic candidate:

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The application was filed by an individual from Vermont for “clothing, namely, t-shirts”. Unfortunately for the applicant, it was rejected because Sanders had not consented.

Similarly, an application for 'Teflon Trump' (US Application 86/751,510 for providing political information) was rejected because the record lacked the written consent of Donald Trump, a leading Republican candidate. Moreover, Trump's own pending application for the mark TRUMP (US Application 86/724,574 for "political campaign services, fundraising, clothing, bumper stickers, decals, posters, pends, online social networking services, online journals, blogs" and just generally promoting public awareness of Donald J Trump as a candidate for political office) had been filed previously. Trump is also the owner of a series of trademark applications filed in 2015 for MAKE AMERICA GREAT AGAIN.

Trump is not the only trademark-savvy candidate. In July 2015 Carson America, Inc filed US Application 86/696,091 for the mark below.

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This application was filed for “providing political information about elections” and the mark is scheduled to be published soon. However, based on current polling data, Carson may drop out of the race before the mark is registered.

With regard to Clinton, a number of applications have been filed by third parties that include the name 'Clinton', some of which are not printable here. Some, such as 'Bush Clinton 2016', are more benignly humorous, but all of these applications will suffer the same fate as the 'Bernie 2016' application discussed above.

Clinton herself apparently has not filed a federal trademark application for the Clinton 2016 campaign. The closest registration is US Trademark Registration 4,209,149 for charitable fundraising services:

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The same holds true for Marco Rubio and Ted Cruz. Neither Rubio's nor Cruz’s campaigns appear to have filed any trademark applications to date. This may be because there are already numerous registrations including the word 'rubio' or 'cruz'. Interestingly, the Spanish word 'rubio' translates into English as 'blond'.

A single trademark application has been filed for 'Jeb!'. This application was filed in January 2015, quite early in the political season, as an intent-to-use application for numerous goods and services including political fundraising services, handbags, golf shirts, bottled drinking water and oral presentations. The application was filed by an entity called BHAG LLC of Miami, Florida. 'BHAG' is an acronym for 'Big Hairy Audacious Goal'. Interestingly, the 'Jeb!' application was recently abandoned, which suggests that the BHAG may be near abandonment as well.

If you wish to file a trademark application and sell t-shirts or stickers in support of your favourite candidate, I recommend contacting the campaign before any action is taken.

Peter L Brewer

This article first appeared in IAM. For further information please visit www.iam-media.com.