Can "ObamaCare" Be Legally Trademarked?

President Obama Signs "ObamaCare" Into Law in 2010

In the last several months, numerous formal trademark applications have been filed with the U.S. Patent and Trademark to attempt to own the term "ObamaCare."

Some were applications filed by insurers or HR professionals, whereas others were filed by opponents of the Patient Protection and Affordable Care Act, which has been dubbed "ObamaCare" ever since its passage in 2010.

For example, the "ObamaCare Calculator" trademark application was filed in August 2013 by Trendsetter, a Texas-based human resources firm.  Meanwhile, "ObamaCare.  Run for your Life," a proposed trademark for sports clothing was also filed, but quickly abandoned.

As reported today by the Wall Street Journal, one of the more controversial applications was filed in July of this year for "Destroy ObamaCare" t-shirts, being sold by a New Orleans-based attorney.  In an interview, the lawyer said that he doesn't "really have a particular desire to see ObamaCare destroyed or saved."  In fact, he has been busy applying for a trademark for "Save ObamaCare" for t-shirts.

The legal problem with all of these trademarks is that they use a living person's name (namely, the sitting President's) without his express written consent.  In recent years, the Trademark Trial and Appeal Board has blocked a number of registrations featuring the President's name, including "Obama Pajama", on this basis.

Therefore, it appears highly unlikely that anyone will be able to legally trademark "ObamaCare," at least in the United States.

America: Made in China

This image was taken from a real label that was found on the streets of New York.

The economic value of China's annual exports to the United States is estimated to be $417 billion, and growing each year. The number of American jobs lost to Chinese imports each year is likely in the hundreds of thousands. This data may help to explain why the Obama administration has struggled with a nagging unemployment rate of approximately 8%, even as the stock market reaches record highs.

It is no surprise to the consumer that very little furniture, electronics, toys or apparel are manufactured in the U.S. any longer, as these items are increasingly imported from China and other developing nations.

The Wall Street Journal has reported that the negative impact of cheap Chinese imports on the American economy is far greater than previously thought.

Similarly, a Wall Street Journal report in April 2012 found that America’s largest multinational corporations outsourced more than 2.4 million jobs over the last decade, even as they cut their overall workforces by 2.9 million. 

Outsourcing jobs to a cheaper foreign labor pool, and increasing the number of cheaply made products from China makes perfectly sound business sense at the microcosmic level in the short-term. Indeed, Wal-Mart has generated billions of dollars in profits derived virtually entirely from this very business model.

However, as a long-term matter, this strategy has the potential to tarnish brands, lower quality, encourage counterfeiting, and even destroy entire industries.

For example, in Deluxe: How Luxury Lost Its Luster, author Dana Thomas chronicles how some luxury brands have resorted to cheap, Chinese mass-market production methods, and how doing so has risked their previously sterling reputations.

No industry is immune from the effects of globalization, cheap imports and job outsourcing. Ironically, even U.S. patent lawyers have seen previously high-paying jobs outsourced overseas.

Is Republican Vice Presidential Candidate Paul Ryan Pro-Techie?

Congressman Ryan with President Barack Obama

Now that former Massachusetts Governor Mitt Romney has declared Wisconsin Representative Paul Ryan to be his running mate in the fall Presidential election, both the pro-tech crowd and the pro-IP crowd are checking their file histories to see where he stands on hot button issues relevant to their particular industries.

Mostly, Ryan's views are in line with the current Administration, according to TechCrunch, which declares that he has "(mostly) been a friend to technology."

Interestingly, Ryan switched his views on the Stop Online Piracy Act ("SOPA"), going from supporting it to opposing it midstream, reportedly after Reddit waged a campaign to get him to change his vote. Ryan seems to oppose Net Neutrality, at least according to Wired.

Overall, it would seem to be a consensus that he is a pro-techie VP candidate, which is in contrast with the current Vice President, who has more in common with the content creator/Hollywood community than the techie crowd.

Why Don't Presidential Candidates Seem to Respect Intellectual Property?

Gage Skidmore / Wikimedia Commons

It seems like many candidates for President of the United States just don't seem to understand how to avoid being accused of copyright infringement.  Here are a few cases in point:

Presumptive Republican candidate Mitt Romney recently launched a YouTube campaign advertisement depicting President Obama, and using the song "Happy Together," without authorization from the songwriter.  The ad is pulled by YouTube as an alleged copyright infringement.  


Earlier in the race, Newt Gingrich used Survivor's "Eye of the Tiger" without permission and was sued for copyright infringement.  In 2010, Rand Paul received a cease and desist letter from Canadian rock band Rush's lawyers for similar behavior with respect to their songs.  And Senator John McCain was sued by Jackson Browne for using the song "Running on Empty" in his 2008 campaign.

Daniel Schwen / GNU Free Documentation License 

But artists aren't only targeting Republicans.  In 2008, President Obama's campaign received a cease and desist letter from duo Sam and Dave about the song "Hold On, I'm Coming."


NPR correctly points out that a blanket license from ASCAP/BMI/SESAC for the particular venue that the candidate is using may already license the song for the copyright royalties covering public performance.


However, not to be outsmarted, the artists have alleged a less clearly-defined trademark infringement theory.  They cleverly contend that the unauthorized use of their music falsely suggests endorsement, sponsorship or approval by the musician.


In any event, what the trend signifies is not so much that the Presidential candidates are a bunch of copyright thieves as it demonstrates that the legal lines between commerce, the First Amendment, politics and copyright/brand protection can be quite murky, as we have previously noted.

Can Politicians Become Trademarks? Are Voters Just "Consumers"?

The Obama Rising Sun Trademark

Even though politicians' names, campaign emblems and slogans are used in all manner of political speech, they may still be fully protectable as commercial trademarks.  Voters and political participants may be treated as "consumers" under applicable trademark laws. Case in point:  Just last month, President Barack Obama's campaign committee filed a trademark infringement lawsuit against a Washington D.C.-based company for using the campaign's "Rising Sun" logo without permission. The Obama campaign sued Washington Promotions & Printing Inc. in federal court, claiming the company's website DemStore.com has been selling unauthorized merchandise featuring the campaign's "Rising Sun" logo. According to the Complaint, the Obama campaign had sent several cease and desist letters last year, but the Defendants continued to infringe. "[The] Defendants are using the Rising Sun Trademarks on merchandise in a deliberate and willful attempt to draw on the goodwill and commercial magnetism of the Rising Sun Trademarks and the Obama Campaigns," the Complaint alleges.

The Obama campaign federally trademarked the “Rising Sun” logo in 2008, according to the Complaint.  It filed for a trademark registration on a similar logo for Obama’s re-election campaign in April 2011. According to the complaint, the Obama campaign is concerned that DemStore’s use of the logo “is likely to create confusion” among "consumers." “[E]ach time a supporter makes a relatively small purchase on the website, [Obama for America] 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,” the Complaint alleges. The campaign “relies largely on promoting a certain message,” according to the complaint, including exercising “strict control over the consumers’ experience on its website and at other marketplaces” selling authorized merchandise. 
And (former) Republican politicians have taken the trademarking theory to the next level.  Last year, Sarah Palin sought to federally trademark her name, devoid of logos.  After her application was initially rejected for being unsigned, the mark proceeded to federal registration on the Principal Register.