Bernie Sanders' Campaign Joins Too Many Other Presidential Campaigns In Abusing Trademark Law

I shouldn't have to start this post this way, but after someone flipped out in my last post about the treatment of Hillary Clinton and her emails, accusing me of being nothing more than a "BernieBro," I'll just make this explicit: I don't currently support any of the current Presidential candidates, and am pretty sure I've mocked all of them for ignorance around issues that concern those of us at Techdirt. Either way, I wonder how the guy insisting I was just a secret Bernie supporter will respond to this article...

Yes, because now Bernie Sanders' campaign is the latest in a long list of presidential candidates to abuse trademark law to try to stifle criticism. His campaign joins those of Hillary Clinton, Ben Carson, Ron Paul and more as presidential candidates, past and present, abusing trademark law.

In this case, Sanders' campaign apparently went after Dan McCall, who was also on the receiving end of the threat from Hillary Clinton's SuperPAC (oh, and also the NSA went after him over trademark as well). Specifically, the Sanders campaign threatened him over the following graphic:You can understand why the Sanders campaign might not like such a graphic, which tries to tie the self-declared democratic socialist with famed communist leaders. Leaving aside whether or not democratic socialism has anything to do with communism (or even whether or not such an image would even have much of an impact on likely voters), there's nothing that is "infringing" in such an image. But that's not what the Sanders campaign argues:

Section 43(a) of the Lanham Act (15 U.S.C. 1125) prohibits use in commerce of "any word, term, name,symbol or device . . . which is likely to cause confusion, or to cause mistake, or to deceive as to the origin,sponsorship or approval of his or her goods, services, or commercial activities by another person." Youruse of the Official Logos is likely to cause exactly such confusion. Additionally, by using the distinctive logoof Bernie 2016, Inc., Liberty Maniacs has violated the U.S. Copyright Act (17 U.S.C. 501) and is liable forfalsely applying the Bernie 2016, Inc. name and logo to Liberty Maniacs' products. 17 U.S.C. 1202. Thislist of Liberty Maniacs' unlawful conduct is not exhaustive.

So this actually goes beyond just trademark law to copyright and election law. Which is insane. There is no confusion here. The image is clearly protected expression. No one is going to be "deceived" into thinking that Sanders supports this image or that it's from his campaign. The lawyer, Claire Hawkins, from Garvey Schubert Barer, also lies about what the campaign's obligations are:

As an intellectual property owner, our client is obligated to take steps to protect its trademark and copyrightrights and to protect the good will built up in its name and brand.

First of all, that's not even remotely true when it comes to copyright, where there is no obligation to protect. On trademark, there is an obligation, but it's quite frequently overstated. It doesn't mean you have to block any use -- especially when those uses are clearly non-infringing.

Thankfully, Dan McCall has Paul Levy as a lawyer (disclaimer, he's represented us as well), and Levy has responded and, as always, Levy's letters are well worth reading. It opens with the following line:

Bernie Sanders should be ashamed of your trademark bullying on his behalf.

And then...

It is your contention, apparently, that an ordinary and reasonably prudent consumer would tend to be confused about whether it is the Sanders campaign that is promoting Sanders' candidacy by associating him with the 19th Century theoreticians of the communist movement as well as with three ruthless Communist Party dictators.

That contention is absurd. You cannot use trademark theories to silence members of the American public who disagree with your client's views and oppose his candidacy. They can hardly express their views in that respect without identifying the candidacy about which they wish to speak; and it is precisely because the logo is so recognizable that it is an excellent way of specifying which "Bernie" is the subject of commentary. Moreover, it is very common for people to express their views about presidential candidates, completely independent of the campaign; such expression is so common that it defies belief that a reasonably careful consumer would believe that a shirt or bumper sticker associating your client with Communists necessarily came from the campaign itself.

Levy also explains fair use and the First Amendment to Hawkins. He also points out that while the letter talks about copyright, she never mentions what the campaign is talking about:

Your letter also refers in passing to your client's ownership of the copyright in logos; the PDF of the letter was labeled "Notice of Copyright Infringement," and that characterization was in the subject line of the email by which you transmitted the letter. However, you do not say that the copyright has been registered. Not only would you need to register the copyright before you can file suit for its infringement, but any such suit would run directly into the copyright fair use defense, which is heightened in the case of an obvious parody like this one....

It goes on beyond that as well. If history is any indication, the Sanders campaign will likely back down, because that's its only non-insane move to make in this situation. Of course, it would have been much smarter to never have sent such a letter in the first place.

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