What is it about presidential campaigns that brings out some of the worst examples of trademark bullying?
Two years ago, we shot down bogus a trademark demand by the Ready for Hillary pre-campaign PAC, which tried to suppress Liberty Maniac's “Ready for Oligarchy” parody. (Readers of this blog may remember Liberty Maniacs (and its owner, Dan McCall) for having drawn threats from the NSA for calling it “The only part of the government that actually listens.”) Last year, it was a demand from Ben Carson’s campaign trying to take the Carson name off both critical and complimentary campaign wear. In 2012, Ron Paul’s campaign committee contended that its trademark was infringed by a YouTube video that satirized its efforts. And in 2008, we had to seek a declaratory judgment against the Republican National Committee to get it to back off an effort to use trademark to prevent people from using the elephant logo to describe the Republican Party as an object of affection or derision. Each time, the lawyers representing candidates or political committees made stupid legal threats based on a misunderstanding of trademark law (or using pretended trademark law claims as an excuse), and each time, the public response to the demands taught them about the consequences of making such demands.
Now it is the turn of Bernie Sanders' campaign to learn that lesson. Yesterday a Seattle lawyer claiming to represent "Bernie 2016, Inc." sent a demand letter to Daniel McCall of Liberty Maniacs, contending that the following parody image, which plays on Sanders' personal background as an avowedly Socialist candidate by referring to him as a "comrade" and linking him to Communist leaders from the 19th and 20th centuries, might confuse users into believing that the Sanders campaign is voluntarily associating its candidate with the communist party.
Invoking the campaign’s trademark and copyright in the Bernie 2016 logo, a lawyer named Claire Hawkins has demanded that McCall stop purveying this image.
Hawkins is not a newbie lawyer; she is a mid-level IP partner at a substantial Seattle-based law firm; her web page suggests that she should know better than to make such trademark claims. I do not know whether the Sanders campaign saw her letter before she sent it. If it did not, it might want to consider keeping its lawyers under tighter control; if it did, it deserves all the negative attention that this foolish letter from its lawyer will likely bring.
On behalf of McCall, I have explained to counsel for the Sanders campaign why her trademark and copyright claims (and an election law claim!) cannot succeed. I hope that she will have the decency to renounce her attempt to use trademark law to suppress speech.
UPDATE: Just after I posted this article, my email to Ms. Hawkins produced a call from the "lead counsel" for the Sanders campaign -- a lawyer whose web page represents that he "provides strategic advice to candidates [and] political committees." I understood him to say that the demand letter was sent by the law firm without any consultation with the Sanders campaign, as part of what he regards as his responsibility to protect his client's intellectual property. But when I tried to explain to him that such responsibilities do not extend to trying to suppress parodies, he complained that I was lecturing him. I recognize that his thing is election law, not trademark law.
Things are developing quickly, so more on the subject will undoubtedly follow soon.