As the political season in the U.S. heats up and the campaigns continue to hone their messages, the branding of the campaigns and the candidates becomes more visible to a larger portion of the U.S. electorate.

Political campaigns are entertaining and instructive fodder for thinking about the power of branding since, after all, they are the genesis for all things “swag.”  Political messaging has provided us with a litter of campaign pins, bumper stickers, mugs and key chains and other give-aways meant to help spread the essential messages of the candidates.   These branded collectibles are the archaeological evidence of each campaign’s attempt to sway voters with some essential pith or short message conveyed in words and images.

Each of the buttons to the left had an explicit message, coupled with an express or subliminal message.  McGovern was for women, Ike and Dick had a personal commitment to you, Hillary Clinton was Rosie the Riveter, working for change…

Click here to view buttons.

What of this year’s imagery?  The Romney campaign has adopted a simplified branding consisting of a red, white and blue triple “R” design (Romney, Ryan, Republican?) which is variously used as part of Romney’s name, and as a stand alone logo at the Romney website.

When coupled with his name and that of vice-presidential nominee Paul Ryan, the message is often accompanied by the tag line Believe in America.  The messaging is clean and simple, and probably is meant to suggest (in addition to the standard patriotism evoked by the colors) the elision of excess in favor of expediency and simplicity and getting back to so-called “core” American values.

Click here to view logo.

That said, Romney’s logo has been likened to the Rolls Royce® image, as well as the Aquafresh® toothpaste imagery—neither of which is probably indicative of the underlying themes the campaign is outwardly attempting to evoke.

Click here to view logos.

The Obama campaign continues to use the so-called  “rising sun” logo with the red, white and blue flag imagery from 2008.   Obama’s 2008 message, “Change We Can Believe In,” has been retired in favor of the simpler, and perhaps less lofty exhortation — “Forward” in 2012.  The Obama campaign also is using variations on “Generation Forty Four,”  “GEN 44,”  “Greater Together” and the 2012 logo shown below.  The Gen44 message is meant to engage the under 40 crowd in supporting the 44th president’s re-election campaign, while “Greater Together” seems a clear attempt to suggest the campaign’s emphasis on inclusion and diversity.

This theme was picked up by the Democratic National Convention Committee which created a somewhat derivative version of the campaign’s rising sun for use with DNC convention activities.

Click here to view logo.

Interestingly, the Obama campaign has sought protection of its brands at the U.S. trademark office (something the Romney camp seems not to have pursued).  In fact, Obama for America, Inc., the official campaign entity for the President’s re-election has registered or applied to register (among others) the three logos shown below:

Click here to view logos.

The mark on the left was registered in 2008, and the 2012 and refreshed logos in the middle and on the right are currently pending.

The Obama camp’s interest in registering its marks comes, in part, from a desire to monetize the rising sun logo through merchandise sales, which sales are, in turn, used to fund the campaign.  That monetization interest is evidenced in the attempts of the campaign to enforce rights in the campaign logos against third parties.

In fact, Obama for America has filed one or more complaints against and others for selling unauthorized ‘Obama for President’ gear.  In its complaints, the campaign emphasized that it relies upon the marks to help collect contributions from supporters, and that it needs to control those rights to encourage and support those donations.

In response, as widely reported over the summer, Judge Emmet G. Sullivan in the United States District Court for the District of Columbia Circuit issued an injunction against (and others) effectively halting the infringing use of the Obama team logos on July 9, 2012.  As of now, pending disputes with Demstore seem to have been resolved by the parties.

Of further note is that the Obama camp’s attempts to register and enforce its marks have encountered an interesting snag.  The U.S. Patent and Trademark Office (“Office”) has refused to register the rising sun logo because, according to the Office, the roundness of the logo connotes the letter “O,” which stands for “Obama,” or “President O.” Because Mr. Obama is a living individual, the campaign cannot register a mark for his name (or any nickname associated with the President) without Mr. Obama’s consent.

This reason for refusal has an express basis in the wording of the Lanham Act, which states:

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register… unless it… (c) Consists of or comprises a name, portrait of signature identifying a particular living individual except by his written consent… 

15 U.S.C. § 1052(c).

That said, The Office’s refusal on this basis does make one wonder.  The Examining Attorney carefully collected evidence of references to President Obama as “President O,” or just “O.”  However, even if “O” has become synonymous in the minds of the electorate with Mr. Obama (the way “W” was for Bush), that doesn’t necessarily explain how the rising sun logo is, itself, an expression of that O.  Indeed, at least this blogger views the Obama logo as a derivative of the countless circles and button shapes used in every Presidential election since at least the late 1800s.  It would never have occurred to me that the rising sun logo is merely an O in disguise.

Perhaps more puzzling is that in maintaining its refusal under Section 2(c),  the Office relies upon In re Richard M. Hoefflin, a precedential opinion of the Trademark Trial and Appeal Board affirming that filings for OBAMA BAHAMA PAJAMAS, OBAMA PAJAMA and BARACK’S JOCKS DRESS TO THE LEFT were rightly refused under Section 2(c) because the marks in those cases (all filed by the same applicant), clearly referred to a living individual (namely, Barack Obama) and applicant lacked the consent necessary for the filings to be valid.   97 U.S.P.Q.2d 1174 (TTAB 2010).  Indeed, the Hoefflin case chides the public’s “Obamafications,” or tendency to use the President’s name to create catchy new marks and phrases—usually for use on t-shirts and street swag sold by the applicant(s)—a common annoyance during every election cycle.  Certainly this “Obamafication” for personal gain is exactly what Section 2(c) was designed to stop.

But the facts of the In re Hoefflin case, and the public’s inclination to attempt to capitalize on the silly Obamafications, clearly distinguish OBAMA PAJAMA (and its brother applications) from applications filed on behalf of Mr. Obama’s official campaign – for a logo that the office already had registered once in 2008, which logo was for a stylization that is not merely a letter O.

Indeed, the purpose of Section 2(c), as pointed out by the Board in the In re Hoefflin case, is to protect the intellectual property rights of individuals in their personal names.  Does the Office think that the official campaign entity of a sitting President is trying to infringe Mr. Obama’s intellectual property rights by applying to register the so-called rising sun logo (nay, an O in disguise) for use with campaign related activities?  Does the Office think that Mr. Obama doesn’t see the logo on the campaign website, or at each campaign stop and on countless signs, swag and lawns?

Of course, the Office is being duly attentive to the clear statutory language.  That said, it would be a clearer case had the campaign applied for a mark with the word OBAMA (or even perhaps just the letter O).  (For the record, Messrs. Bush and Cheney signed consents to have their names registered by the Bush Cheney campaigns for use in connection with campaign activities.)

Unfortunately for the campaign, this Section 2(c) refusal has been used by alleged infringers to assert that the logo itself is not a valid trademark owned exclusively by the campaign.  If that were the case, then of course the campaign would face potential hurdles in enforcing rights against junior users of similar or identical marks in the future.  It seems that the campaign may need to obtain consent, if only to ensure that its rights in the rising sun logo can be validated.

As the election day draws nearer, it will be interesting to observe each campaign’s commitment to obtaining registrations and/or enforcing rights against junior users who may be using the marks without authorization and/or for personal gain.  In the meantime, it will also be informative to see how down ballot candidates in both camps either use or distance themselves from the top of the ticket branding.  Come back soon for more observations on this subject.