Posted November 12, 2008
The Smoking Gun blog reported yesterday the increase in trademark filings that include a reference to President-Elect Obama. A quick search of the USPTO database yields 32 live applications and 11 dead applications that include the word "Obama."
Folks, stop filing the applications. You will not get a registration because you must have the consent of Barack Obama ... and there are are false association/endorsement issues.
Applications that include references to John McCain and Hillary Clinton have also been refused. I suspect the application for "Puck You Palin" will also receive a refusal in due course.
SECTION 2(C ) CONSENT
Registration of the present application is also refused under Section 2(c) of the Trademark Act, for the record does not include the written consent of Barack Obama and Osama Bin Laden, the names of the living individuals identified in the proposed mark. Section 2(c) of the Trademark Act, 15 U.S.C. Section 1052(c), bars the registration of a mark that consists of or comprises (whether consisting solely of, or having incorporated in the mark) a name, portrait or signature which identifies a particular living individual, except by the written consent of such individual. A name need not be the person's full name in order to identify a particular individual. See In re Sauer, 27 USPQ2d 1073 (TTAB 1993); In re Steak and Ale Restaurants of America, Inc., 185 USPQ 447 (TTAB 1975).
Moreover, the fact that a name appearing in a proposed mark may actually be the name or nickname of more than one person does not negate the requirement for a written consent to registration, so long as the proposed mark identifies, to the relevant public, a particular living individual or deceased United States president whose spouse is living. In re Steak and Ale Restaurants of America, Inc., 185 USPQ 447 (TTAB 1975). Whether consent to register is required depends upon whether the public would recognize and understand the mark as identifying the person.
In the present case, the names Obama and Osama clearly refer to Mr. Obama and Mr. Bin Laden. Accordingly, because neither of their written consent is not of record, registration must also be refused pursuant to Section 2(c) of the Trademark Act. To overcome this particular refusal, the applicant must therefore submit written consent from the two individuals, authorizing the applicant to register their names. Trademark Act Section 2(c), 15 U.S.C. §1052(c); TMEP §§813 and 1206 et seq.