Trademarks and Political Speech

Author:Anabelle Torres Colberg
Position:Attorney at A.T.C. Law Offices
Pages:296-315
 
FREE EXCERPT
T
RADEMARKS AND
P
OLITICAL
S
PEECH
A
NABELLE
T
ORRES
C
OLBERG
,
E
SQ
.
*
I. Introduction ..................... ........................................... ............................................ ..... 296
II. Background ......................................... ........................................... .............................. 299
A. The Problem of Trademark Usage in Political Speech ........................ 299
B. Insufficient Trademark Protection of Original Political Slogans .... 300
III. The usual explanations for maintaining the status quo .............................. 302
A. First Amendment Considerations ........................ ....................................... 302
B. Noncommercial Speech against Commercial Speech ..................... ..... 305
IV. New Alternatives ..................................................................... ................................... 307
A. Is a Commercial Campaign a Better Analogy for a Political
Campaign?................................................................ ........................................... . 307
B. Application of Trademark Law in Political Context ................. ............ 308
1. Trademark Use in Political Speech ........................................ ..................... 308
2. Trademark Protection for Political Slogans ......................................... ... 310
C. Possible Changes to the Law ...................................... ................................... 312
1. Use of Another Trademark in Political Speech ...................................... 312
2. Trademark Protection for Political Slogans ......................................... ... 312
V. Do We Really Need a Change? ................................................................. .............. 313
VI. Conclusion ................................................................... ............................................ ..... 314
I. I
NTRODUCTION
A slogan is a phrase used to advertise or promote a product, service,
political candidate, or organization. Political candidates rely on slogans to
promote themselves as the better choice against their opponents, and they
frequently use previously trademarked slogans in order to advance their
message. However, when a trademark holder’s phrase or slogan becomes the
repeated catchphrase associated with a candidate or political cause, that
trademark holder may rightly become concerned.
1
In most cases involving political use of trademarked slogans, courts
repeatedly have ruled in favor of politicians. The courts have stated that
politicians us ed the trademark in a noncommercial manner and, thus, their
*
Attorney at A.T.C. Law Offices; L.L.M. in Intellectual Property at the George Was hington
University Law School; J.D., Magna Cum Laude, at the University of Puerto Rico School of Law;
Editor at the Revista Jurídica de la Universidad de Puerto Rico (University of Puerto Rico Law
Review); B.A. in Journalism, Magna Cum Laude, University of Puert o Rico School of
Communications.
1
See John D. Shakow, Just Steal It: Political Sloganeering and the Rights of Trademark Holders,
14 J.L
&
P
OL
.199 (1998).
No. 2 Trademarks and Political Speech 297
use maintains the value of free speech and the marketplace of id eas. Along
similar li nes, the courts have also denied trademark protection for political
slogans created by politicians during a campaign. These slogans are seen as
expressive phrases, detached from commercial means, and consequently are
disqualified from trademark protection. That distinction is not correct and
should be re-evaluated. The use of trademarks by politicians in their
speeches, as well as the creation of original slogans during the course of their
campaigns, correspond to the use of marketing strategies that look for the
support needed for a certain politician to prevail in a particular election. The
relationship between trademarks and political speech is clearly a tense one
because trademark holders do n ot get the protection needed in the political
scenario.
Courts have acted in accordance to the belief that the Constitution
prohibits any restriction on political speech, unless a party can prove a
compelling state interest to the contrary. However, this philosophy assumes
that political speech has inherent democratic value that advances the
principles of government and of th e democratic process.
2
By extending First
Amendment protection to incidental speech in support of the democratic
process, courts must c onsider the way it interprets First Amendment rights.
3
Courts have not confronted a major struggle in their restriction of obscene,
libelous, scandalous, or misleading political speech, since these types of
speech cause harm more often than good. Said reasoning should also be
applied to trademark plagiarism in political speech.
4
It is not the same to
occasionally use a known trademark to express a particular idea, as it is to
use it as a promotional slogan for a politician. By repeatedly using it as a
catchphrase, people will associate the trademark with the politician and
seeing that the motivation behind the use is purely commercial, it should not
be awarded with the overwhelming First Amendment protection.
Another view states that political slogans are commercial speech
rather than political discourse. It presumes that p olitical slogans have
minimal informational value and that politicians choose to adopt a
commercial mark for its associative and market power rather than for its
content.
5
In fact, many politicians seek trademark protection for their
original slogans so that they may obtain the legal means by which to market
them as a product that warrants consumer support.
In cases of political trademarks, courts have applied First Amendment
considerations too broadly. They have not restricted political speech in
relation to trademarks because of their emphasis on freedom of political
speech; they have not considered the notion that the current political speech
2
Id.
3
Id.
4
Id.
5
Id.

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