Wednesday, April 8, 2009

My New Favorite Barack Obama Inspired Pro Se Trademark Application

There are no shortage of examples of pro se applicants attempting to capitalize on the popularity of President Barack Obama by filing applications with the U.S. Patent and Trademark Office to register trademarks containing some form of the the name BARACK OBAMA. See IPBlog and PatentlyO for some prime examples. Most of these applications are typically for clothing (t-shirts) filed by pro se applicants with delusions of grandeur about getting a trademark on some slogan that they want to put on the front of some t-shirt (not realizing that such use is considered merely ornamental – see prior blog posts here and here – and not trademark use for t-shirts, but that’s really a sidenote to the inevitable doom of these types of applications).

Now I have another Obama inspired trademark application to add to the list – one that I have yet to see mentioned elsewhere that I stumbled upon while searching on the PTO’s Trademark Electronic Search System (TESS) for a particular design mark (and using TESS’ handy IMAGE LIST function) – this design mark application filed by New York resident Christopher Eastland (pictured below).

From Mr. Eastland’s perspective, the mark has nothing to do with our current President. The application’s slightly offensive description of the mark is as follows: “The mark consists of the head of a smiling man with pointy ears in a vampire costume, with the face and head in light brown and black, dark brown slicked back hair and eyebrows, dark brown cape, visible white teeth and fang, and purple lips, all outlined in the color black.”

Nonetheless, the mark was refused registration – on the same basis as most other applications seeking registrations involving Obama – lack of written consent from the President (15 U.S.C. §1052(c)):

Registration of the present application is refused under Section 2(c) of the Trademark Act, for the record does not include the written consent of Barack Obama, the name of the living individual whose likeness is depicted 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). Whether consent to register is required depends upon whether the public would recognize and understand the mark as identifying the person. . . . The use of his likeness in the proposed mark would be construed by the public as a reference to Mr. Obama. . . . Accordingly, because Barack Obama’s written consent is not of record, registration must be refused pursuant to Section 2(c) of the Trademark Act. To overcome this particular refusal, the applicant must therefore submit written consent from Barack Obama, authorizing the applicant to register his likeness.

Of course, if the PTO had actually allowed the mark to be published for opposition, I can imagine at least one company that might have had a problem with Mr. Eastland’s mark.

And it will probably come as no surprise that Mr. Eastland also applied for the mark COUNT BARACKULA (which sufferred a similar fate -- in addition to seeking registration on the Supplemental Register rather than the Principal Register and not reciting any basis for filing).

Another applicant who could've save himself $550 if he had just consulted with a trademark attorney first.

UPDATE: The shirts can be found at

Ornamental indeed!


Anonymous said...

Well, maybe not saved $550 - you would have charged him for the advice.

Ryan Gile said...

Not true Anonymous I get cold calls from people like this all the time -- and when it's this obvious that it would not be registered, I tell them straight out over the phone. No charge. And I think most of my trademark brethren would do the same.