Obama Campaign Playing Partisan Property in Dispute over Rising Sun Trademarks

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. 

Trademarks and Electability

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.

You Call It "Support," but ....

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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