Three years ago, the Obama "Hope" poster caused a bit of a copyright
stink between the Associated Press and artist, Shepard Fairey. That case, Fairey
et al v. The Associated Press, 09cv1123 (SDNY), was settled January of last year. However,
President Obama finds himself in the thick of a new intellectual property
dispute. This time, it involves trademarks; specifically, "the distinctive and
famous Rising Sun and 2012 Rising Sun logos, which are and have been used to
symbolize OFA [Obama For America] on campaign signs, posters, merchandise, and
a variety of other promotional items."
Last Friday, OFA sued Demstore.com (Demstore) for trademark infringement.
Demstore.com operates a website that sells merchandise bearing the Rising Sun
logos. OFA, which sells campaign merchandise at www.barackobama.com, has been
using the 2008 Rising Sun Trademark since 2007 and the 2012 Rising Sun
Trademark since 2011.
According to the complaint:
Defendants' use of the Rising Sun
Trademarks on campaign merchandise is likely to create confusion as to the
source of merchandise bearing the Rising Sun Trademarks. Consumers are likely
to believe that Defendants' Demstore.com website and products are associated
with OFA, when in fact they are not.
While IP protection is part of the issue, there's also the obvious issue
of fundraising and campaigning. As OFA so clearly puts it:
OFA relies entirely on
contributions from supporters to run its operations. These contributions are
subject to legal restrictions on both the source of income and the amount that each
donor can give. For example, OFA cannot receive any contributions from
incorporated entities, and contributions from individuals are limited to $2,500
per election from a single individual during the 2012 cycle. The purchase price
of any item of OFA merchandise is treated as a contribution, subject to these
limits. Thus, the sale of merchandise featuring the Rising Sun Trademarks makes
up a significant portion of OFA's revenue.
The sale of Campaign merchandise is
crucial to OFA's efforts to interact with voters, because each time a supporter
makes a relatively small purchase on the website, OFA obtains that individual's
contact information, which OFA can then use to reach out to that individual
repeatedly to seek further donations and further opportunities to promote the Campaign.
In a letter dated July 29, 2011, OFA questions Demstore's
claim of support for the President, noting that "Demstore's
interference with OFA's efforts to control its marks is at odds with its claim
to be an 'ardent democratic supporter,' and suggest instead a pure profit
motive for the infringement." The letter goes on to hint at Demstore's defense -
that the Rising Sun logos are invalid based on laches. In addressing this
assertion, OFA argues that:
a laches defense is not available in
connection with intentional infringement, which is clearly the case here.
Further, use of the Rising Sun Logos is tied to federal election cycles, and we
do not believe that any delay in addressing this issue has been unreasonable.
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