Patterico's Pontifications

9/5/2019

Obama Lawyers Attempt to Steal Trademark

Filed under: General — JVW @ 12:17 pm



[guest post by JVW]

As we all know, Barack and Michelle Obama scored themselves somes really nice post-White House deals in various endeavors (by the way, Mr. Obama, we’re still waiting on you to publish your White House memoir for which you are to be so highly compensated). This foray into the nexus of Hollywood and media nicely encapsulates the trajectory of modern progressivism, and would be perfected if one (or both) of them can also finagle a part-time lecturing gig somewhere in academia. I for one would find it highly appropriate for Mr. Obama to commute via private jet from his Washington DC, Chicago, or Martha’s Vineyard home to somewhere like Yale or Princeton in order to lecture the rest of us on the necessity of reducing our green footprint. But becoming a media titan has a lot of moving parts, and it would seem that Team Obama intends to leave no stones unturned along the path.

To that end the Obama media company, christened Higher Ground Productions (just like the Stevie Wonder song!) filed for a trademark on their name, just like any other new business does. In this case, though, they found themselves denied by the Patent and Trademark Office due to an already trademarked e-book company called Higher Ground Enterprises who according to their website has been in business since 2008, the year that Barack Obama first won election to the Oval Office. From the looks of the website, which consists of a homepage with zero — count ’em, zero — links to subpages, Higher Ground Enterprises isn’t doing a whole lot of business these days. (On the other hand, perhaps business is so flush that they are simply no longer accepting online submissions and only taking new clients by referral.) Having come up against a trademark wall as a small business owner myself, there are three different ways to proceed. The first is that you can rename your business to something that hasn’t already been trademarked. The second is that you can contact the business and see about purchasing the trademark from them.

Team Obama is apparently choosing the third way: they are trying to lawyer the trademark away from Higher Ground Enterprises. Via Fox News, the attorney representing the e-book company says that Team Obama’s attorneys have filed a petition to have his client’s trademark cancelled due to non-usage. Team Obama is apparently basing its claim on a technicality of sorts, arguing that the e-book publisher was essentially defunct by the time that the Higher Ground Enterprises trademark was granted in 2016, and that the company operates in an “entertainment services” space which is distinct from Higher Ground Production’s focus on “media production services.” But Team Obama’s language from their original trademark filing, dug up by The Hollywood Reporter, seems to indicate a sense of entitlement to the name based upon the strength of the Obama brand and the exquisite taste of their audience [emphasis in all cases below added by me]:

“[T]he consumers of ‘media production services’ covered by the Application are likely to be highly sophisticated,” stated a letter on behalf of the Obamas’ production company to the Trademark Office. “Media production services are generally offered not to individual consumers but to commercial entities and professionals in their field. Indeed, Applicant has entered a deal with Netflix in connection with its media production services. Such customers, whether multi-billion-dollar media companies or smaller commercial entities in need of media production services, will exercise the height of care in selecting a media production company and are highly unlikely to be confused by a photographer or e-book publisher — particularly when the other party uses a distinguishable mark.”

In other words, our wealthy and highly-educated clientele won’t be confused by the similar names since the other party is — and here you can imagine them practically spitting out the words in a condescending tone — a photographer or e-book publisher. Left unaddressed by Team Obama’s patent attorneys is the question of whether Higher Ground Entertainment’s potential customers would likely be misdirected to a company that wants nothing to do with their ilk, and would you please not park your car in our visitor’s lot or mill about in our lobby.

I can’t help but think that the Barack Obama of Dreams of My Father and The Audacity of Hope would have been a little more sympathetic towards a small business that is being lawfared into submission by a multi-million dollar production company who works for a multi-billion dollar media giant, but I guess now that they are done with elections the Obamas can indulge their inner bullies. Why, if I were to draw a comparison to the behavior of other moguls I would say that their move is positively Trumpian.

– JVW

25 Responses to “Obama Lawyers Attempt to Steal Trademark”

  1. I’m not a fan of this execrable couple.

    Colonel Haiku (2601c0)

  2. A little bit more about Barack Obama’s long-overdue memoir.

    My American Life by Ronald Reagan was published in November 1990, about 22 months after he had left the White House.
    George H.W. Bush chose not to write a White House memoir.
    My Lies, excuse me, Life by Bill Clinton was published in June 2004, about 42 months after he had left the White House.
    Decision Points by George W. Bush was published in November 2010, about 22 months after he had left the White House.

    It looks as though Obama is on the Clinton schedule. Earlier this spring, the New York Post reported that Penguin was telling booksellers that the Obama memoir would not come this year, suggesting that it might be released in 2020 during the heart of the election season. On the one hand it might rally Democrats to a President whom they still generally like, even as they are moving sharply to his left. On the other hand, that risks Obama stealing the stage away from a Democrat nominee whom he is not particularly fond of, like a Bernard Sanders or an Elizabeth Warren. It should be interesting.

    JVW (54fd0b)

  3. Wikipedia, it turns out, has a pretty interesting page on books written by Presidents. It looks like the White House memoirs range from two years after leaving office (LBJ, Carter, Reagan, GWBush) to, uh, eighteen years after leaving office (Hoover). Penguin better hope that Mr. Obama is not on the Hoover plan.

    JVW (54fd0b)

  4. I cannot comment on the merits.

    But, as a trademark lawyer for over 20 years, I can say one thing. It is a basic principle of trademark law that trademark rights are gained through use, not through conception, and that you have to keep using trademarks, or you will lose your rights. That has been the law for over 100 years, and there is no “technicality” about it.

    The Supreme Court gave a short statement of what a trademark is over 100 year ago. It is still good today, and probably 90% of trademark law is derivative of that statement of law:

    There is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade in connection with which the mark is employed. . . . [A trademark’s] function is simply to designate the goods as the product of a particular trader and to protect his good will against the sale of another’s product as his; and it is not the subject of property except in connection with an existing business.

    United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90 (1918)

    Bored Lawyer (998177)

  5. But, as a trademark lawyer for over 20 years, I can say one thing. It is a basic principle of trademark law that trademark rights are gained through use, not through conception, and that you have to keep using trademarks, or you will lose your rights. That has been the law for over 100 years, and there is no “technicality” about it.

    Yes, as a trademark holder I encountered that situation. When my business shut down, we decided not to renew our trademark.

    If Big Media Company X was doing this to some small operator then it wouldn’t really surprise me. But I think it’s a bit crazy that someone like Barack Obama, with a public image to maintain, wouldn’t have just offered to buy the trademark from the holder, especially if they determined it’s no longer in use. But I guess it’s as the old saying goes: a progressive is one who is quite generous with someone else’s money.

    JVW (54fd0b)

  6. I didn’t know that George H.W. Bush ddn’t write a White House memoir.

    I thought every president (who survived office) did that since Truman (Hoover;s long delay is explained by the fact that the idea didn’t occur to anyone till after Roosevelt’s death,

    Both Richard Nixon and Jimmy Carter wrote many many books. Nixon’s 1990 book “In the Arena” is much better than his more official memoirr, “RN”

    Sammy Finkelman (8dcc71)

  7. And yet trademarks are bought and sold.

    We even have this fairly common situation of some new company, with no connection to the ld reviving a long dormant trademark – but I think they buy the rights.

    Sammy Finkelman (8dcc71)

  8. @5

    To me, that just begs the question. If you have no rights, then why should I buy something from you?

    It’s like if I buy a house, and someone comes along and says, I grew up in that house, so you need to pay me something for it. I would say, but your parents sold it, and then the buyer sold it to someone else, who is now selling it to me. So, while you might have a sentimental attachment to that house, it is not yours, and I have the right to buy it from its lawful owner.

    Bored Lawyer (998177)

  9. And yet trademarks are bought and sold.

    We even have this fairly common situation of some new company, with no connection to the ld reviving a long dormant trademark – but I think they buy the rights.

    TMs are bought and sold when there is an existing business which the TM identifies.

    And, in fact, you cannot sell a TM by itself — you have to sell it along with the business it identifies, or at least the goodwill of the business. (This is another corrolary of the Supreme Court decision I quoted. The legal term here is “right appurtenant” which derives from that case — a TM is simply a right appurtenant to an ongoing business. In contrast, patents and copyrights are “rights in gross,” meaning they have their own independent existence).

    When you have a long dormant company that does not use the mark, the law deems it lost by abandonment. It is free for the taking.

    Bored Lawyer (998177)

  10. Great post, JVW. Interesting comments, Bored Lawyer.

    The Obama’s lost me at “are likely to be highly sophisticated”. The fact that this was Team Obama’s go-to justification reeks of some really awful classism. It’s clear they truly have become one percenters, and adopted all the trappings of that unique class.

    Dana (fdf131)

  11. This reminds me: I have a potentially valuable trademark I’ve been meaning to squat on, for when Google realizes its value.

    That it is valuable due to a third party’s obvious intellectual property isn’t important to me — the third party is dead. So, I think I’ll be a double parasite. What’s wrong with that? This is America!

    Kevin M (21ca15)

  12. I may be wrong, but I think the first President to write his memoirs was Grant.

    Kishnevi (43b9bd)

  13. “I may be wrong, but I think the first President to write his memoirs was Grant.”
    Kishnevi (43b9bd) — 9/5/2019 @ 7:52 pm

    Sounds right. He did it to raise money, establishing a cashing in precedent followed by nearly everyone since. Bush 41, already drowning in cash, had no need.

    Munroe (732181)

  14. It is Trumpian, JVW, and you aren’t the only one who noticed. See this.

    DRJ (15874d)

  15. Bored Lawyer is 100% correct. I laughed, and laughed, and laughed when the feds tried to seize the Mongols motorcycle gang club trademark. Was the DOJ going to form its own motorcycle gang? Who would be the members? U.S. Attorneys? FBI agents? The judge agreed with me: https://www.latimes.com/local/lanow/la-me-mongols-trademark-ruling-20190228-story.html

    nk (dbc370)

  16. TIL Jesse Ventura, former governor of Minnesota, was a member.

    nk (dbc370)

  17. Plus, Southern California law enforcement already had “the Vikings.” Going for “the Mongols” too? C’mon. That’s just greedy.

    Leviticus (0ca0d7)

  18. Leave some gang names for the rest of us, sheesh

    Leviticus (0ca0d7)

  19. Today the Mongols, tomorrow the Bandidos y los Vagos…

    inshallah la la la la
    Inshallah la la la la la la la

    Colonel Haiku (2601c0)

  20. And then the grittiest of the lesbian biker clubs, the VaJayJays…

    Colonel Haiku (2601c0)

  21. Led by Irma Vasconcellos, a 260lb, one-legged beauty who scorns prosthetic devices and is known for farting with every hop she makes.

    Colonel Haiku (2601c0)

  22. “It’s the beans, mijo”…

    Colonel Haiku (2601c0)

  23. Back in the ’80s I knew a couple who were Chicago motorcycle paramedics. They had an off-duty motorcycle club with a gang-style jacket patch: A hypodermic over a motorcycle and the name “Motor Needle”.

    “Good morning, ma’am. I’m Special Agent Erskine and this is Special Agent Ward. We’d like to ask you a few questions.”

    “Are you with the FBI?”

    “No, ma’am. We’re Mongols.”

    nk (dbc370)

  24. What is enough use to stand up to a claim of abandonment? I would imagine even slight use is enough to retain ownership.

    Maybe the Obama hope a lengthy lawsuit will make the holder sell to avoid litigation costs. Using the courts to improve negotiating power may be legal but it usn’t moral.

    DRJ (15874d)

  25. Lebron James wants to trademark Taco Tuesdays…. good luck

    steveg (354706)


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