Above the Law

Another campaign season, another long slog of intellectual property infringement by candidates.

It’s amazing to me that people who are running for public office steal other people’s property and then flaunt that theft in public. Imagine if a campaign made a habit of stealing a car every time the candidate needed to go somewhere. Even in today’s world of weird politics, I have to think that people would be upset by that. And yet they steal music, fame, and trademarks and no one bats an eye.

Theft of music rights is so commonplace that ASCAP has a set of guidelines covering the use of music in campaigns. It’s not just a question of getting a standard license. If a campaign makes substantial use of a particular song, makes it the theme song for example, then there are other rights involved, including the right of publicity, and the potential for a claim for false endorsement.

Most recently, the Committee to Restore America’s Greatness put up a billboard showing the candidate it supports dressed as Superman®. Unless they had a license to use the famous mark[1] pictured above, which is owned by DC Comics E.C. Publications, Inc. and Warner Communications LLC, this is an incredibly serious infringement of intellectual property rights.

Disregard for property rights is not traditionally a popular plank in a candidate’s platform, but it is a very common one.

[1] The owner of the trademark has not responded to my inquiry.



The World’s Best Trademark Blog Part II


In my last blog I talked about how the Trademark Office doesn’t care whether Whole Foods actually is the WORLD’S HEALTHIEST GROCERY STORE. In fact, lots of registered trademarks include “merely laudatory” words or statements, and that’s perfectly OK under trademark law.

Here’s just a tiny sample of the registered trademarks that are laudatory claims:

  • The Toughest Name in Tools®
  • The Toughest Tournament in the Universe®
  • The World’s Toughest Cigarette Machine®
  • The Toughest Sport on Wool ®
  • The Strongest Name in Rope®
  • The Greatest Show on Earth®
  • Fastest Oil Change on the Planet®
  • The World’s Smallest Exercise Machine®

Why does the Trademark Office allow these? Isn’t it misleading consumers?

First, as I said in my last blog, it’s not the Trademark Office’s job. Vetting the truth of advertising is the job of the Federal Trade Commission.

Second, consumers don’t take these kinds of statements as factual. It’s the kind of harmless “puffery” we expect in advertising. We sense they aren’t meant literally.

Compare those hyperbolic statements to these:

  • #1 Doctor Recommended Brand®
  • #1 Pediatrician Recommended Brand®
  • Stronger than Stainless Steel®

A reasonable person would probably think these have some science, testing, or truth behind them. The coating materials sold by Fused Armor, Inc. better produce something that’s actually stronger than stainless steel in some reasonable comparison, or you’re going to feel like they lied to you.

It does make you wonder then about the application by Kings County Bar to register “Smallest Penis in Brooklyn.” Hmmmmm. Laudatory or true?