Sunstein Kann Murphy & Timbers LLP

February 2009 IP Update

Barack Obama - The Man and the Brand

T he inauguration of the 44th President of the United States has touched off a virtual land rush of merchandisers and others seeking to cash in on the Barack Obama “brand.” This is perhaps not surprising, given the historic significance of Obama’s inauguration as the nation’s first African-American President and the grass-roots nature of his populist campaign. So how far will the merchandisers be able to ride the “hope and change” bandwagon by evoking the President’s name and image in connection with their products? The answer is likely to be: not very far.

A search of the records of the Patent and Trademark Office (PTO) reveals more than 100 trademark applications for marks containing the name BARACK or OBAMA. None of them has proceeded to the registration stage, except for two long-expired registrations for a logo for BARACK PALINKA owned by a Liechtenstein company claiming use of the mark on apricot brandy since 1900. (The registrations reveal that BARACK is Hungarian for apricot and PALINKA is Hungarian for brandy—a curious coincidence in light of Sarah Palin’s spot on the Republican ticket.) It is instructive to see how the modern applications have fared so far.

During the presidential campaign, a number of enterprising merchants attempted to register marks including BARACK or OBAMA in connection with clothing, bumper stickers, and pins, including for example BARACKNOPHOBIA, BARACK THE VOTE, OBAMA BIN LADEN, and OBAMA NOT YOUR MAMA FOR PRESIDENT IN 2008.

These applications were all rejected on the grounds that they falsely suggested a connection with Barack Obama under 15 U.S.C. Section 1052(a) and/or required the written consent of Barack Obama because the marks consisted of or comprised a name, portrait or signature which identified him as a particular living individual under 15 U.S.C. Section 1052(c). For good measure, the PTO also refused the registration of OBAMA BINLADEN on the grounds that the BIN LADEN portion of the mark was scandalous under 15 U.S.C. Section 1052(a).

Not deterred by these early failures, dozens of trademark applicants have thrown their own Obama brands into the ring for PTO examination. Applications are currently pending for OBAMA CIGARS, THE OBAMA DIET, OBAMA VODKA, OBAMA PAJAMA, and OBAMA CHICK (for clothing). Even the President’s detractors have gotten into the act, with applications for marks such as IT’S AN OBAMANATION! and BARAK? [sic] OH BUMMER! Unless the owners of these applications can produce the President’s written consent, they are likely to face an uphill battle with the PTO.

While the battle over the Obama brand rages at the PTO, some merchants have taken it to the streets. Ty Inc., the maker of the famous Beanie Babies, announced in January that it would sell brown-skinned dolls named Marvelous Malia and Sweet Sasha – coincidentally, the names of President Obama’s 10-year old and 7-year old daughters. First Lady Michelle Obama apparently did not consider imitation of her daughters to be the most sincere form of flattery, stating through her press secretary, “We feel it is inappropriate to use young, private citizens for marketing purposes.” While Ty Inc. denied that it intended to trade on the names or images of the Obama daughters, earlier this month it renamed the dolls “Marvelous Mariah” and “Sweet Sydney.”

In the copyright arena, a high-profile fight is brewing between Shepard Fairey, the artist who created the iconic “Hope” poster during the Obama campaign, and the Associated Press, which claims to own the copyright in the photograph on which the poster is based. The photograph, taken by AP photographer Mannie Garcia at the National Press Club in Washington in 2006, captured then-candidate Barack Obama in a thoughtful pose with his eyes lifted upward.

Fairey claims that he discovered the photograph on Google Images, and created a new and transformative work in red, white and blue over the word “HOPE,” in an effort to develop a visual image that would inspire Americans to work for change.

After the AP demanded royalties on his sales of the “Hope” poster, Fairey brought suit in the Southern District of New York on February 9, seeking a declaratory judgment that the “Hope” poster does not infringe any copyright of the AP and constitutes fair use. The AP has not yet answered the complaint. The case raises intriguing issues, particularly since Fairey admitted using the Garcia photograoh as the basis for the “Hope” poster and and sold 4,000 of the posters for $45 each (in addition to giving away 300,000 more).

There are likely to be some twists and turns ahead. According to blog reports, Garcia may challenge the AP's ownership of the photograph on the grounds that he was not an AP employee and never assigned his copyright to the AP in writing. Fairey has problems of his own, and not all of them have to do with copyright; he was recently arrested on his way to an exhibition at the Institute of Contemporary Art in Boston on charges of vandalism for painting his artwork in public spaces.

The power of the Obama "brand" is appealing to many, especially early in the President's administration. Those who seek to capitalize on it must tread carefully with respect to trademark, copyright, and publicity laws.

	Articles Our Newsletters Speaking/Press Other Useful IP Links	February 2009 IP Update Barack Obama - The Man and the Brand By Julia Huston T he inauguration of the 44th President of the United States has touched off a virtual land rush of merchandisers and others seeking to cash in on the Barack Obama “brand.” This is perhaps not surprising, given the historic significance of Obama’s inauguration as the nation’s first African-American President and the grass-roots nature of his populist campaign. So how far will the merchandisers be able to ride the “hope and change” bandwagon by evoking the President’s name and image in connection with their products? The answer is likely to be: not very far. A search of the records of the Patent and Trademark Office (PTO) reveals more than 100 trademark applications for marks containing the name BARACK or OBAMA. None of them has proceeded to the registration stage, except for two long-expired registrations for a logo for BARACK PALINKA owned by a Liechtenstein company claiming use of the mark on apricot brandy since 1900. (The registrations reveal that BARACK is Hungarian for apricot and PALINKA is Hungarian for brandy—a curious coincidence in light of Sarah Palin’s spot on the Republican ticket.) It is instructive to see how the modern applications have fared so far. During the presidential campaign, a number of enterprising merchants attempted to register marks including BARACK or OBAMA in connection with clothing, bumper stickers, and pins, including for example BARACKNOPHOBIA, BARACK THE VOTE, OBAMA BIN LADEN, and OBAMA NOT YOUR MAMA FOR PRESIDENT IN 2008. These applications were all rejected on the grounds that they falsely suggested a connection with Barack Obama under 15 U.S.C. Section 1052(a) and/or required the written consent of Barack Obama because the marks consisted of or comprised a name, portrait or signature which identified him as a particular living individual under 15 U.S.C. Section 1052(c). For good measure, the PTO also refused the registration of OBAMA BINLADEN on the grounds that the BIN LADEN portion of the mark was scandalous under 15 U.S.C. Section 1052(a). Not deterred by these early failures, dozens of trademark applicants have thrown their own Obama brands into the ring for PTO examination. Applications are currently pending for OBAMA CIGARS, THE OBAMA DIET, OBAMA VODKA, OBAMA PAJAMA, and OBAMA CHICK (for clothing). Even the President’s detractors have gotten into the act, with applications for marks such as IT’S AN OBAMANATION! and BARAK? [sic] OH BUMMER! Unless the owners of these applications can produce the President’s written consent, they are likely to face an uphill battle with the PTO. While the battle over the Obama brand rages at the PTO, some merchants have taken it to the streets. Ty Inc., the maker of the famous Beanie Babies, announced in January that it would sell brown-skinned dolls named Marvelous Malia and Sweet Sasha – coincidentally, the names of President Obama’s 10-year old and 7-year old daughters. First Lady Michelle Obama apparently did not consider imitation of her daughters to be the most sincere form of flattery, stating through her press secretary, “We feel it is inappropriate to use young, private citizens for marketing purposes.” While Ty Inc. denied that it intended to trade on the names or images of the Obama daughters, earlier this month it renamed the dolls “Marvelous Mariah” and “Sweet Sydney.” In the copyright arena, a high-profile fight is brewing between Shepard Fairey, the artist who created the iconic “Hope” poster during the Obama campaign, and the Associated Press, which claims to own the copyright in the photograph on which the poster is based. The photograph, taken by AP photographer Mannie Garcia at the National Press Club in Washington in 2006, captured then-candidate Barack Obama in a thoughtful pose with his eyes lifted upward. Fairey claims that he discovered the photograph on Google Images, and created a new and transformative work in red, white and blue over the word “HOPE,” in an effort to develop a visual image that would inspire Americans to work for change. After the AP demanded royalties on his sales of the “Hope” poster, Fairey brought suit in the Southern District of New York on February 9, seeking a declaratory judgment that the “Hope” poster does not infringe any copyright of the AP and constitutes fair use. The AP has not yet answered the complaint. The case raises intriguing issues, particularly since Fairey admitted using the Garcia photograoh as the basis for the “Hope” poster and and sold 4,000 of the posters for $45 each (in addition to giving away 300,000 more). There are likely to be some twists and turns ahead. According to blog reports, Garcia may challenge the AP's ownership of the photograph on the grounds that he was not an AP employee and never assigned his copyright to the AP in writing. Fairey has problems of his own, and not all of them have to do with copyright; he was recently arrested on his way to an exhibition at the Institute of Contemporary Art in Boston on charges of vandalism for painting his artwork in public spaces. The power of the Obama "brand" is appealing to many, especially early in the President's administration. Those who seek to capitalize on it must tread carefully with respect to trademark, copyright, and publicity laws.