Would You Like An Obama Cigar? We Think The USPTO Will Say: “No You Can’t!”

Co-author:  Branden Gregory (more on him later)

We admit that we love trademarks enough that we can pass time away with our feet propped up while running random searches on the USPTO’s database of trademark applications.  Sure this time might be better spent working off a few more stubborn winter pounds, but that might have meant missing a few gems.

During Barack Obama’s campaign for President, there were a few applications to register various OBAMA related trademarks which were presumably filed by his supporters and his opponents.  Later, more commercial-oriented applications appeared:  OBAMA bottled water, cigars and other products that we’re sure we can’t live without.  The applications just keep coming.  And not just here in the U.S.  The IPKAT reported that trademark applications in Europe to register OBAMA marks have appeared in several European countries.

But, did any of these applicants really think the USPTO would register these marks? The USPTO is not going to allow registration of President Obama’s name without the President’s consent.  Not only will the President politely decline to consent to Obama soft drinks, but we are also willing to bet it will be nearly impossible to get past Obama’s personal secretary, Katie Johnson.  As for these marks, in the words of Heid Klum, the host of Project Runway, “You are out!”

As for those marks which “merely” propose using “OBAMA” as a term of the mark, they are not likely to get much further as the USPTO will probably construe the marks as consisting primarily of a surname.  In the eyes of the USPTO, this is a “no no.”  We were surprised to learn that the Obama name is relatively unusual in the U.S., but it won’t be perceived as unusual any longer.  We can’t come up with another meaning for “OBAMA” other than as a surname:  it does not signify a geographical area, have a secondary meaning or translate from Swahili into something other than the President’s surname (we’ll admit to being a bit rusty on our Swahili).

So why did attorneys agree to file these applications?  It strikes one of us as fairly straight forward that the USPTO won’t register the marks, but were we missing something?  Brief interlude . . . one of the best things about summer is that one of us gets to hang around some fantastic summer associates including Branden Gregory who graciously agreed to hit the books and find a way to convince the USPTO to register these marks.   Although fully inspired with the “Yes We Can” slogan, his conclusion was that we are not going to be seeing Obama energy drinks anytime soon.

Then what was the good-faith basis for filing the applications to register Obama marks?  Did the attorneys tell their clients that perhaps they might get lucky and catch one of the trademark attorneys in a mischievous mood?  That wouldn’t be kosher so that can’t be it.  Anyone have any thoughts?  Anyone?  Bueller?  . . . Bueller?

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About Dave Rein

Dave Rein focuses on and will continue to focus on copyright, trademark and patent litigation until the National Geographic adds him to its staff of photographers. In addition to counseling and litigating on behalf of the firm’s clients, he also helps clients through the Kansas City Volunteer Lawyers and Accountants for the Arts where he also serves as a board member. Prior to representing clients, Dave clerked for a federal district court judge who kindly provided invaluable advice and mentorship
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