RNC goes after CafePress and others for using the Republican elephant in parody

[Ichingcarpenter]

he demands from the RNC to the California-based CafePress.com put the committee at the intersection of political speech and trademark law, legal experts said. The company is refusing to comply with the letter, despite a second letter from the committee referring to “further action” and possible damages.

“If you want to say ‘GOP’ and design an elephant that’s similar, want to design an elephant that’s not precisely the same as ours, that’s fine,” RNC chief counsel Sean Cairncross told Politico. “Our elephant is specific. It’s stylized, it’s blue and red, it has three stars across its back that are tilted. They’re using that precise elephant.”

The lawyer for CafePress, Paul Alan Levy, called the RNC demand an “abuse of trademark law to suppress discussion of topics of substantial public interest.”

Levy, of the nonprofit Public Citizen Litigation Group, asked “why the RNC has chosen an election year to try to suppress speech about the Republican Party, especially since many of the images are highly favorable to their cause.”

The t-shirts at issue range across a spectrum. Some simply bear the elephant or “GOP” logo, which the committee has also trademarked. Others are pro-Republican: One shows a large elephant trailed by two smaller elephants and the words, "I'm raising my children right.”

Others attack the GOP, such as a a portrayal of an elephant leading three sheep and the words, "wake up sheeple!".

The RNC’s Cairncross responded that the letters to CafePress were a standard move to defend a trademark, and that political speech isn’t the issue.

“It’s not a political statement – it’s a commercial statement. They’re moving merchandise,” he said.Legal experts said the company has a stronger case in defense of its anti-Republican shirts, which could be protected under long-standing law and under a specific amendment to trademark law that exempts parody.

Ironically, the pro-Republican shirts could more plausibly be subject to the claim they’re “diluting” the GOP brand and could be mistaken for products of the committee itself.

“On the t-shirts that are using the logo to criticize , the cases are almost open and shut” in favor of using the logo, said Jane Ginsburg, a professor at Columbia University Law School.

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http://www.politico.com/news/stories/0708/11834.html

[Warpy]

1. This is a nuisance suit

that they don't have any intention of winning. They just want another shot at killing political speech by making it expensive to exercise.

Even the conservative USSC won't back this one.

[ThoughtCriminal]

2. Ironically, they may succeed in getting Cafe Press to stop

selling the pro-Republican merchandise which actually competes with their own, but not the Anti-GOP merchandise which have 1st amendment protection as parody (Extensive case law precedent to back that).

Nice going - idiot GOP lawyers! Shoot yourself in the foot, reload and blast away at the other foot.

[LiberalFighter]

3. The stance of elephant is not wide enough for the bottom image.

[LiberalFighter]

4. Should replace the stars on the elephant with the nazi symbol or even put a hood on it.

[crimsonblue]

5. The way trademark law works

is that if the GOP has the elephant logo without the TM or ® symbol on it for the majority of their logos, then their right to claim trademark infringement disappears. It's the "use it or lose it".

from a discussion on the Cubs (which sorts out the usage stuff):

What’s the point of the ® symbol?
The simple answer is this: Companies whose trademarks are registered with the United States Patent and Trademark Office must use the symbol or else the registration may be lost. That symbol is the only symbol that shows that a company’s trademark is registered with the USPTO.

Okay, but why register a trademark to begin with?
The basic answer is to show to the world what the mark signifies. It shows the source of goods or services and the quality of those goods or services. (Please, no joking about how the Cubs have played over the last century or so!)

But do you have to use the ® every single time your mark appears?
Many trademark attorneys advise their clients to place the ® symbol everywhere (in fact, an employee at a company that’s a client of mine complained about having to make sure that the symbol was always there). There may be times when there might be a business-related reason not to include the symbol, but I advise my clients to keep those to a minimum. For example, would anyone want to buy a CD by a band whose name is followed by the ® symbol? The symbol should certainly be on items such as advertisements, press releases, web sites, etc.

Okay, so how does this all apply to the Cubs? When did they register their logo?
The Cubs’ first registered trademark that I can find comes from May 20, 1969. It’s the familiar logo where “Cubs” is in a circle and the “C” is bigger than the rest of the word.

But if you look at photos from the 1970s, the Cubs didn’t use the ®. If they registered the mark in 1969, why did they wait until the early ’80s to add the symbol?
It’s hard to say why. My only guess would be that an aggressive trademark attorney joined their corporate structure around the time the symbol started appearing.

Alright, so that covers the Cubs. But what about other teams — don’t all major-level sports teams register their logos?
I think so. (The old Hartford Whalers were an exception — their logo was never registered. The NHL started the process once the team moved to Carolina and was renamed the Hurricanes but never finished.)

Then why don’t all these other teams wear the trademark symbol?
They’ve chosen not to. As a trademark lawyer and a sports fan, I like the example of the New Jersey Devils. Their red “NJ” logo has been registered since January 10, 1984, but of course the ® symbol isn’t on their uniform. And why should it be? The uniform itself tells us that they are the New Jersey Devils. They do use the symbol, however, on their licensed goods. To me, this strikes the right balance. We already know, as sports fans, who the mark belongs to, so the appearance of the symbol seems redundant to me on the uniform when worn on the field. But using it in all other areas, such as licensed goods, is an effective way to communicate that the mark is a registered trademark and that the goods or services represented by the mark come from the proper companies.

So you’re basically saying that the Cubs’ logo is no more (or less) trademarked than any other team’s logo, but that the Cubs engage in a bit of overkill by taking the extra step of using the ® symbol on their uniform?
Yes.

discussion of trademark on logos


So, if a majority of the time, the RNC allows their logo to be used without the symbol, than their trademark has little validity.

[Kansas Wyatt]

6. This must be one of those "Junk Lawsuits" republicans are always whining about.

If they whine about these type of lawsuits, then why do they threaten to file them?