Election year trademark politics

I am again straying away from defamation matters to note that within the past week and a half, the United States Patent and Trademark Office has rejected applications for trademark registration incorporating part or all of the names of two of our current leading presidential candidates. BARAK? OH BUMMER! (Application #77420522) was rejected on July 28, 2008, while MORE OF THE SAME JOHN MCCAIN (Application #77437466) was rejected on August 1, 2008. In both instances the rejection was "refused under Section 2(c) of the Trademark Act, for the record does not include the written consent" of the person named.

The McCain mark was also rejected on the basis of "likelihood of confusion with the mark in U.S. Registration No. 3333658" - which happens to be the familiar "McCain" logo under a star which Senator John McCain has been using throughout this campaign (and for which McCain's "consent is of record").

Of interesting note, the application for BARAK? OH BUMMER! was filed on March 12, 2008, the application for MORE OF THE SAME JOHN MCCAIN was filed a few weeks later, on April 2, 2008, and by a completely unrelated party. Both rejections were authored by USPTO examiner Karen Bush, who has authored a number of other rejections for marks containing McCain and/or Obama, leading me to suspect that Ms. Bush has been designated as the go-to person for handling these election year issues.

As I said, this is not a defamation matter. The purpose of the restriction on unconsenting use of a person's name is not to prevent the registration of marks which defame that person (although there is a separate restriction under Section 2(a) for "matter which may disparage or falsely suggest a connection with persons, living or dead"). Rather, it is to prevent sellers from taking advantage of the reputation of the referenced indivual. Although this policy is not spelled out in the statute, surely no one would mistake the above marks as efforts to fool the public into thinking that products bearing them were made by or endorsed by the named individuals.

An interesting sidenote on the nature of trademarks is that John McCain's ownership of the "McCain" mark not only prevents uses such as the above, but would also prevent a person whose name was in fact McCain from obtaining a trademark registration in their own name in support of their own candidacy for public office. "McCain" is not a terribly uncommon surname, and in fact there are several Canadian politicians who share that name. Indeed, John McCain could conceivable sue such a person to prevent them from selling campaign materials under their own name!