Bernie Sanders' Campaign Joins Too Many Other Presidential Campaigns In Abusing Trademark Law

from the so-presidential dept

I shouldn’t have to start this post this way, but after someone flipped out in my last post about the treatment of Hillary Clinton and her emails, accusing me of being nothing more than a “BernieBro,” I’ll just make this explicit: I don’t currently support any of the current Presidential candidates, and am pretty sure I’ve mocked all of them for ignorance around issues that concern those of us at Techdirt. Either way, I wonder how the guy insisting I was just a secret Bernie supporter will respond to this article…

Yes, because now Bernie Sanders’ campaign is the latest in a long list of presidential candidates to abuse trademark law to try to stifle criticism. His campaign joins those of Hillary Clinton, Ben Carson, Ron Paul and more as presidential candidates, past and present, abusing trademark law.

In this case, Sanders’ campaign apparently went after Dan McCall, who was also on the receiving end of the threat from Hillary Clinton’s SuperPAC (oh, and also the NSA went after him over trademark as well). Specifically, the Sanders campaign threatened him over the following graphic:

You can understand why the Sanders campaign might not like such a graphic, which tries to tie the self-declared democratic socialist with famed communist leaders. Leaving aside whether or not democratic socialism has anything to do with communism (or even whether or not such an image would even have much of an impact on likely voters), there’s nothing that is “infringing” in such an image. But that’s not what the Sanders campaign argues:

Section 43(a) of the Lanham Act (15 U.S.C. § 1125) prohibits use in commerce of ?any word, term, name, symbol or device . . . which is likely to cause confusion, or to cause mistake, or to deceive as to the origin, sponsorship or approval of his or her goods, services, or commercial activities by another person.? Your use of the Official Logos is likely to cause exactly such confusion. Additionally, by using the distinctive logo of Bernie 2016, Inc., Liberty Maniacs has violated the U.S. Copyright Act (17 U.S.C. § 501) and is liable for falsely applying the Bernie 2016, Inc. name and logo to Liberty Maniacs? products. 17 U.S.C. § 1202. This list of Liberty Maniacs? unlawful conduct is not exhaustive.

So this actually goes beyond just trademark law to copyright and election law. Which is insane. There is no confusion here. The image is clearly protected expression. No one is going to be “deceived” into thinking that Sanders supports this image or that it’s from his campaign. The lawyer, Claire Hawkins, from Garvey Schubert Barer, also lies about what the campaign’s obligations are:

As an intellectual property owner, our client is obligated to take steps to protect its trademark and copyright rights and to protect the good will built up in its name and brand.

First of all, that’s not even remotely true when it comes to copyright, where there is no obligation to protect. On trademark, there is an obligation, but it’s quite frequently overstated. It doesn’t mean you have to block any use — especially when those uses are clearly non-infringing.

Thankfully, Dan McCall has Paul Levy as a lawyer (disclaimer, he’s represented us as well), and Levy has responded and, as always, Levy’s letters are well worth reading. It opens with the following line:

Bernie Sanders should be ashamed of your trademark bullying on his behalf.

And then…

It is your contention, apparently, that an ordinary and reasonably prudent consumer would tend to be confused about whether it is the Sanders campaign that is promoting Sanders’ candidacy by associating him with the 19th Century theoreticians of the communist movement as well as with three ruthless Communist Party dictators.

That contention is absurd. You cannot use trademark theories to silence members of the American public who disagree with your client’s views and oppose his candidacy. They can hardly express their views in that respect without identifying the candidacy about which they wish to speak; and it is precisely because the logo is so recognizable that it is an excellent way of specifying which “Bernie” is the subject of commentary. Moreover, it is very common for people to express their views about presidential candidates, completely independent of the campaign; such expression is so common that it defies belief that a reasonably careful consumer would believe that a shirt or bumper sticker associating your client with Communists necessarily came from the campaign itself.

Levy also explains fair use and the First Amendment to Hawkins. He also points out that while the letter talks about copyright, she never mentions what the campaign is talking about:

Your letter also refers in passing to your client’s ownership of the copyright in logos; the PDF of the letter was labeled “Notice of Copyright Infringement,” and that characterization was in the subject line of the email by which you transmitted the letter. However, you do not say that the copyright has been registered. Not only would you need to register the copyright before you can file suit for its infringement, but any such suit would run directly into the copyright fair use defense, which is heightened in the case of an obvious parody like this one….

It goes on beyond that as well. If history is any indication, the Sanders campaign will likely back down, because that’s its only non-insane move to make in this situation. Of course, it would have been much smarter to never have sent such a letter in the first place.

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Comments on “Bernie Sanders' Campaign Joins Too Many Other Presidential Campaigns In Abusing Trademark Law”

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anonymous says:

to be honest whoever was slandering techdirt over statements on clinton is a dumb a$$. Bernie sanders is the best candidate we have who’s running. Hillary is a lying POS trying to save her a$$ and it’s obvious trump is mad with his idea to build a wall. Furthermore I’m certain whoever had the audacity to try and slander your posts about what truth you had to say about clinton was a paid supporter to see if you could pull dirt on sanders. At the moment nobody has much negative to say about him because he’s honest. Trademark and copyright laws are CRAP for the most part and do more harm than good.

Anonymous Coward says:

Another One Bites the Dust

“…accusing me of being nothing more than a ‘BernieBro…”

I can’t imagine any regular reader of your stuff suddenly changing his/her point of view to incorporate that belief based on an absurd, single rant.

Sad to find that the one guy I thought had at least a remote shot at maintaining some dignity during a Presidential race is being served by asshats who pull this kind of crap. Burn, Bernie, burn!

Anonymous Coward says:

ha ha ha...

Socialism, Communism… what a little difference between the isms right?

There are quotes too numerous to count against this foolishness, but here is one that stands out well in the crowd.

I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.

~Thomas Jefferson

America has become more progressive over time, seeking to destroy itself, by believing that they can vote in people like Hillary and Bernie that promise to take care of them.

Anonymous Coward says:

Re: ha ha ha...

Yup, and I presume that includes capitalism.

Certainly you agree that this country has been self destructing under the present what ever you want to call it system for some time. Trickle down? – yeah right, that has worked out so well, for the elite ruling class. Supply side? – laughable but not workable.

Anyone aware of the past certainly can see the present and near future hold little to nothing for anyone other than the top 1%, and yet some continue to make rationalizations for and criticize all who suggest and/or attempt to make things better. Status Quo thinking is not going to help anything.

Remember kids, providing for the common needs of society, like roads, utilities and other infrastructure via taxation is bad – private individuals, corporations and tax exempt philanderers have your best interests in mind, they would never screw you over for their benefit. All heil our benevolent overlords.

Espryon says:

Bernie Sanders is an enigma. He is the 1st honest candidate in the US political system in decades. I respect freedom of expression but, that law does not protect parody in a negative sense to my memory. There could also be the inclusion of election law which could further protect Sanders’ claims. Considering what Sanders is up against in this election, even if he is silencing this 1 person. He will be giving voice to millions in the US that have been silenced by the failed capitalist system that has unequally distributed wealth and created a plutocracy of such that has bought out our rule of law, criminal justice system, and our system of politics. The US is no longer a free country and this 1 man is helping us realize that. He predicted Isis, the Panama Papers, economic recession, and private enterprise taking control of parts of the US Treasury. I’d say he’s earned it.

Anonymous Coward says:

Re: Re:

He is the 1st honest candidate in the US political system in decades.

So honest he will abuse trademark law to silence dissent? Please, put the “Cool-Aid” down! Where are intellectually bankrupt people like you created?

Bernie and Hillary are darlings of the corrupt economy you claim to hate, but I am not shocked you are too stupid to know any better. They only talk trash about capitalism to sucker derps like you into voting for them. They have no intention of doing anything other than creating more regulation to dupe you into thinking they are doing something while also putting in every loop-hole necessary to keep their business buddies happy so they will keep contributing to their party and campaigns.

No wonder America is going to hell, too many easily fooled suckers like you begging for help from a government that will only take from you instead of getting out and doing for yourself!

Espryon (profile) says:

Re: Re: Re:

Yes.. Because every person running has the record Bernie Sanders has Sarcasm. Not only being right about which being right about the ramifications of our bought and paid for political system but, being part of the Civil Rights movement, voting against the war in Iraq, voting for veterans, standing with unions and workers not corporation and corporate greed, etc. I did not praise Hillary Clinton in my past comment. I personally think she is a sociopathic liar who as Cornell West put it is “a puppet of Wall St.”. Let’s hope that Trump vs Hillary does not become our general election matchup. I don’t see much of a difference between a Wall St. Puppet and a Wall St. Insider.

That One Guy (profile) says:

Re: Re: Re: Re:

In this case however the ‘supporters’ in question appear to be the legal council to the campaign group, so if he didn’t know about it before it was sent, which I’d say is likely, at the very least he needs to shorten the leash of his lawyers so they don’t screw up like this again and give him another PR black-eye.

Espryon (profile) says:

Re: Re: Re: Re:

In my experience of working with the campaign. Bernie tends to let his lawyers do whatever they feel is appropriate up until Bernie and his team reviews it. Much like earlier in the year allowing supporters to use the Bernie logo without paying for it. I think its a bit of an overreaction to issue this type of response without an official response from the campaign i.e. from Jeff Weaver.

That One Guy (profile) says:

Re: Re: Re:2 Re:

Yeah, that’s not how it works. The lawyers are meant to represent their client, in this case Bernie’s election campaign group, if the lawyers are sending out letters that he doesn’t agree with or support that’s his problem for letting them do so without checking in first.

If lawyers are acting appropriately then nothing they do should run counter to the wishes of their client, if they are doing otherwise that’s a good indicator that either they need to be replaced, or have their leash shortened.

That One Guy (profile) says:

Re: Re:

I respect freedom of expression but, that law does not protect parody in a negative sense to my memory.

I’m not sure what definition of ‘parody’ you’re using, but given I’m pretty sure the majority of parody is ‘negative’ at least in the sense that the one being parodied probably isn’t too thrilled by it, if you weren’t allowed to parody someone ‘in a negative sense’ that would rather gut the ability to make parodies.

Parody tends to range from ‘poking fun’ to flat out mockery of the subject matter, that’s the purpose of parody, to take the original and twist it, often doing so to highlight some absurdity or flaw in the original.

That One Guy (profile) says:

Re: Re: Re: Re:

Spray-painted where and what charges though? I’m guessing any potential charges had little to nothing to do with the ‘Trump = Hitler’ imagery and more to do with graffiti laws.

Politicians aren’t immune from mockery and parody, and in fact as I understand it thanks to their position they are less protected from such than your average citizen, due to being public figures.

John Fenderson (profile) says:

Re: Re:

“that law does not protect parody in a negative sense”

I’m not sure what you mean here, but if you mean that parody that is mean to the subject is not protected speech, then you are incorrect.

“Considering what Sanders is up against in this election, even if he is silencing this 1 person […]”

It seems like you’re arguing that he is such a good person and is fighting such a good fight that he has earned the right to abuse the law? I don’t think even Bernie Sanders himself would agree with that.

That One Guy (profile) says:

"You're positive our lawyers are on /our/ side, right?"

The best part of this has got to be that if you take the threat seriously the lawyers are basically claiming that there is a very real chance of confusion between this parody and the real thing, as though the difference between the official stance and the parody one are small enough to be negligible.

As far as countering parody by pointing out that it is parody, and not a real reflection of the actual stance the candidate holds, ‘People might not be able to tell the difference between the two’ is probably not the best way to go about it.

Bruce C. says:

Re: "You're positive our lawyers are on /our/ side, right?"

It’s not that they believe there is a chance of confusion of the parody– it’s that they know that if Sanders were to actually win the nomination, this same kind of attack is in the menu of every Republican SuperPAC and campaign out there. There are people out there who actually believe that any kind of socialist is a dirty commie.

Such an attack is easy to shrug off if it comes from Trump or Cruz or the Tea Party. It’s a lot harder if this logo becomes a meme with corresponding merch and marketing. They probably see this as a “Swift Boat” or “Willie Horton” level threat to their candidacy.

Uriel-238 (profile) says:

Bernie is willing to cross the line when he wants.

This is exactly what I was afraid of before, and I expect it’s indicative that he’s going to be the same sort of torture-condoning drone-striking opaque-administering president that we’d expect everyone else to be.

Bernie Sanders is, at very best, the least of available evils. But he is forged from and works within the same political machine that produced our previous monstrosities of administrators. There’s no reason to believe that he’ll be significantly different.

He’s not the real deal any more than Mr. Hope and Change proved to be.

Anonymous Coward says:

Re: Bernie is willing to cross the line when he wants.

“He’s not the real deal any more than Mr. Hope and Change proved to be.”

Yeah, but we did get to do first-black-President. In the current circumstances, I prefer first-Jew to first-woman, and neither brand of hate-mongering appeals from the other side.

Uriel-238 (profile) says:

Re: Re: Bernie is willing to cross the line when he wants.

As terrible as our nation is with trusting or including anything that isn’t a white male, I would have preferred our first non-white-male to have a certain degree of solidarity and integrity so we can look back at the black guy and admit he wasn’t a terrible president.

The problem is he’s a terrible president. What I remember from his presidency is:

~ promising to be transparent and yet having an opaque administration than even president Bush.

~ Allowing and trying to justify the CIA extrajudicial detention and interrogation program or the CIA drone-strike program.

~ Promising protection for whistle-blowers and then jailing them and refusing to pardon them even when it’s clear they’re on the right side of history.

~ Unflinchingly endorsing the surveillance state

~ Unflinchingly endorsing the corporate state (and the TPP)

~ Saying I welcome the debate when he really doesn’t welcome any debate and is going to justify doing what he wants.

Either Obama is a downright scary, terrible president or it is impossible for anyone in the oval office to not be a scary, terrible president, because they administrate with a gun to their heads.

I suspect the latter is much more likely the case. We can only expect that Bernie or Hillary or Trump or whoever will go in there and be introduced to the gun. And whoever it is will also be a terrible president.

Granted, for some issues, I tend to run more liberal than conservative. I tend to want more abortion and birth control access and less money going to churches.

But those issues seem trivial to our mass surveillance and our extrajudicial torture and our mass murder programs abroad. The United States is totally the bad guys now. We fit right in a line with Lenin, Stalin and Mao.

And if Bernie gets elected, he will too.

Anonymous Coward says:

Re: Re: Re:

No research needed, socialism leads to big, powerful government and eventually fails. If socialism was so great, why do so many people still head to America for a chance to succeed? A chance to have something they could never obtain at home? If capitalism is so bad, how did the US become such a land of opportunity? A country that went from zero to the richest, most powerful country in the world in less than 200 years? The poor here live better than the middle class in many countries.

Monday (profile) says:

It is happening nonetheless...

… [a]ccusing me of being nothing more than a “BernieBro,”; you really didn’t need to defend yourself. How much of a “Streisand Effect” do you think you created with this opening statement? People went and looked for that comment, I am sure of this.

Nevertheless, Sanders’ legal team went after this guy. If it accomplishes anything, it just might educate him on the vast differences between Communism and Socialism. As for Parody? I found nothing remotely funny in the meme. It is obviously designed to injure the campaign, but Sanders should have been able to rise above this – he has been attacked for being Communist almost his entire political career.

Maybe, just maybe Bernie Sanders was sitting at his morning coffee and said in that trademark-able voice of his, “I am so sick of this shit. Girls / Boys, go get him!” I could see that happening.

A cure for that might be to send people like Dan McCall to a Democratic-Socialist country. I’m not saying fly them to Norway, Sweden, Finland, Denmark, Holland… ENGLAND etc., but put on a bus to Canada and let them stay there for a week. Maybe they’ll have an accident and get to explore the medical system. McCall might see just how friendly a bunch of C̶̷o̶̷m̶̷m̶̷u̶̷n̶̷i̶̷s̶̷t̶̷s̶̷ Democratic Socialists are. Through not engaging in War all the time, Canada is evolving, albeit glacially, into an half decent country as well. We are talking about a political system that is an hundred plus years old, and not the hundreds of years of political evolution like the aforementioned. Not every War is a Just war, so most of them are unnecessary. This in my opinion, retards the growth of decent political, and social systems in the US. And,right now, there are so many sociopaths running for POTUS right now, it’s considered acceptable to make assaults in every way conceivable, on every sense of every voter. Sometimes, things just aren’t that funny. For example, every time John Kasich opens his mouth, it is an assault on the opposite sex. It is with him so habitualized, he does this without even thinking – it is subconscious. Donald Trump goes out of his way to be an asshole to everybody and anything, and it has been his way of doing business his entire life; this is just unconscious knowledge, yet to him, everyone and everything is, “… [t]errific, just terrific.” He comes of as the working man’s man, but no reporter or article has ever mentioned the ten million dollar loan from his dad, that was used to get him started. I am not speaking of different levels of classification regarding Hillary Clinton‘s private emails, or that evil little Goblin Ted Cruz. All of them are bad… why do I think Mike Masnick is an undecided voter??? Sanders is trying to run an educated campaign, and he has garnered a huge amount of support. I can see his legal team defending him even if he eventually saw the matter after this whole legal battle began to transpire. Nevertheless, he’s nothing like the rest of them.

Either way, it is after the fact, and one way, or another, McCall is going to pay for his intent to harm, or by having no idea what parody or humour is, or Communism for that matter, harm the senses of Sanders voters, and swing the voting public at large.

I could use ten million dollars about now, how about you?

John Fenderson (profile) says:

Re: Re:

I don’t really see anybody crucifying him. People are complaining about a bad thing his campaign is doing. I’m sure that you’re right — this is the sort of detail that candidates don’t personally sign off on in campaigns of this scale.

Nonetheless, it needs to be called out. As a bonus, how Sanders responds to this will tell us all something about his style.

Anonymous Coward says:

Re: Re:

I’d wait to see what happens with this before you crucify Bernie over this.

Id he cannot manage the campaign, or find people who do things in the way he wants, how will he manage the country if elected?
Things like this show just how absurd politicians promises are, as they cannot actually deal with everything that they claim they will deal with.

Anonymous Coward says:

There IS actually a chance of confusion and parody.

Given the statistics on birthers, yeah, certainly there is a demographic of the U.S. that would likely regard this as a legit logo. If you assume otherwise you haven’t spent much time in the LimpBalls Belt.

Definition LimpBalls Belt:
The geographic area of the United States where there is only one rock and roll radio station, and it plays the syndicated Rough LimpBalls propaganda show, every day during the work hour. Estimates vary, but this may account for as much as 25% of the total geographic area of the United States.

The existence of the LimpBalls Belt can be attributed to the 1996 Telecommunications Act, signed into law by Bill Clinton, which allowed for massive aggregation of media outlets resulting in a more homogenized, polarized U.S. culture.

Wendy Cockcroft (user link) says:

If the Sanders campaign thinks that graphic is bad, wait till they discover Something Awful.

As I’ve said over and over and over again, your reputation is more influenced by your own conduct than by what others say about you. Therefore, when someone lies, exaggerates or makes unwelcome comments about you, their message will only appeal to those who are willing to believe them.

No Bernie supporter is going to change his or her mind over that graphic because they’ve no doubt seen those comparisons made before, but the campaign’s response to it might make some people reconsider. None of us like attempts to clamp down on free speech.

Uriel-238 (profile) says:

Re: Re: Mind-changes based on graphics

Far more people voted against Obama on the grounds that he was a Kenyan Muslim terrorist than we would like to admit.

For a significant portion of the US voter population, the political conversation is based on who’s more handsome, has a simpler, easier name to pronounce / spell, and who can make the other guy sound worse.

Remember that the whole swift boat affair was based on a medal-honored vet seeing action and having objections to the war he was fighting. Contrast that to the other guy who dodged the war by getting admitted into the champagne-squadron of the national guard.

We turned a medal-honored vet who dared to have an independent thought into a campaign smear, and the people of our nation at large bought it without thinking on what it meant.

That is altitude at which our campaigns are fought.

Wendy Cockcroft (user link) says:

Re: Re: Re: Mind-changes based on graphics

One presumes that “Because he’s a Kenyan Muslim Marxist gay terrorist” sounds better than “Because he’s black.”

The dog whistle has a variety of tunes, it seems, but it’s a dog whistle nonetheless.

This doesn’t mean we can’t criticise the man: he persecutes whistleblowers, signed off on drone strikes against American citizens, has few problems with mass surveillance, is pushing corporate takeover deals AKA TTIP, TPP…

Criticise him in the right way and for the right reasons, is what I’m saying.

Uriel-238 (profile) says:

Re: Re: Re:2 Dog-whistles and smearing.

Heh. I belong to that choir.

I was a true Obama hope and change believer, and feel personally betrayed by his administration’s reversal on his campaign visions. I’ve made the list recently.

But I’m pretty sure most of the ordinarily schlubs of the US don’t operate at that level, as much as I would like them to… or to be proven wrong.

Yeah, Kenyan muslim may seem a more legitimate gripe than Hawaiian Black Guy (It’s not.) but a lot of dog-whistle politics trigger at the non-conscious level of product fluffing and negative campaigning.

How I wish for a more self-aware people. Training people to be just that is part of my job.

Uriel-238 (profile) says:

Re: "Redistributionist"

Perhaps you should take a look at the wealth distribution of the US, and the degree of poverty in the US.

Most of us, by far, don’t have apple devices nor can we afford starbucks.

And frankly, a smartphone in every hand would facilitate what the UN has determined should be inalienable human rights, e.g. the right to make informed decisions about one’s own destiny.

Beware of class-war rhetoric, because not discussing frankly our wealth disparity will lead to… a class war.

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