A rose by any other name would smell as sweet, wrote Shakespeare, but this year’s vitriolic U.S. presidential election campaign has inspired many alternative names that just smell bad. Throughout the campaign season, the candidates, and their supporters and detractors, have coined a number of notable and notorious names for one another.
With labels such as LYIN’ TED (Sen. Ted Cruz), LITTLE MARCO (Sen. Marco Rubio), LOW ENERGY JEB (Gov. Jeb Bush), and CROOKED HILLARY (Hillary Clinton), Donald Trump has been particularly adept in the naming department, having carefully crafted zingers that have adhered to their recipients like verbal caricatures. More recently, Mrs. Clinton’s BASKET OF DEPLORABLES (some Trump supporters) has also topped the list. Indeed, the 2016 presidential race has played host to some of the most colorful “cast of monikers” in recent memory.
Like them or not, these catchy, mud-slinging names may be an embarrassment for the candidates on the receiving end, who no doubt are hoping they soon will be forgotten. But thanks to certain entrepreneurial members of the public, who have quickly filed trademark applications for these names with high hopes of cashing in on them while the election season is still hot, derogatory candidate names are being memorialized forever.
During the presidential campaign, the United States Patent and Trademark Office (USPTO) have been flooded with politically centered trademark applications for such slogans as HILLARY’S HOT SAUCE WARNING: IT WILL SET YOUR PANTS ON FIRE! (for condiments, namely, pepper sauce) and SHUT THE TRUMP UP! (for clothing); the LYIN’ TED and CROOKED HILLARY marks (for imprinting messages on wearing apparel and mugs); and, more recently, a host of DEPLORABLE-derivative marks.
The trouble with public efforts to cash in on a name associated with a politician is that, ironically, the only “cash” is the trademark application fee, which goes into the government coffers and not back to the entrepreneur. The USPTO will not grant trademark registrations for these marks. Section 2(c) of the Lanham Act (the U.S. Trademark Act) requires the USPTO to refuse registration for a name or likeness identifying a particular living individual whose written consent to registration of the mark has not been obtained. Hence, the applicant for the mark LYIN’ TED will just have to eat the $225 application fee and get nothing in return.
Although this may be disappointing news for these aspiring entrepreneurs, through their applications, however, they have in fact created a permanent trademark record of the name. Trademark records are public documents that can be easily found through a search of the USPTO’s Trademark Electronic Search System (TESS) at uspto.gov. In the LYIN’ TED trademark application, while Sen. Cruz might hope his days as “Lyin’ Ted” are over, the TESS record reveals an “Office Action” refusing registration of the name, which reads in part: “Rafael Edward ‘Ted’ Cruz (born Dec. 22, 1970) is an American attorney and politician.… The proposed mark would be construed by the public as a reference to Mr. Cruz.” In other words, the association between the LYIN’ TED mark and Ted Cruz is now memorialized in the USPTO’s online record.
The good news for everyone concerned about his or her reputation is that in the Lanham Act the USPTO has in place strong mechanisms for protecting individuals and their reputations from those that hope to gain through defamation, and they work. As for applications for DEPLORABLE-derivative marks that do not exactly identify a specific living individual, they might just be approved.
This article was co-authored by Julianne Bochinski (Conair Corp.), Eric Fingerhut (Dykema Gossett PLLC), Ann Heidger (Thomson Reuters) and Elizabeth Regan (Marriott International, Inc.) of the International Trademark Association’s Public and Media Relations Committee. For more information, visit inta.org.