President Obama’s reelection campaign, Obama for America, has recently settled a trademark dispute over its “Rising Sun” logo–the now famous “O” with red and white striped fields below a rising sun made of the open center space.  The campaign trademarked the image in 2008 and also trademarked a similar logo in April of last year for the 2012 campaign.  On June 1st, the campaign filed a trademark infringement suit in the U.S. District Court for the District of Columbia against DemStore.com, alleging it was selling products with the logo on its website.  DemStore has been in the business of selling Democratic campaign materials since 1985.  On its website were products, including hats, t-shirts, and buttons, depicting the logo.  It argued that the campaign was selectively enforcing its trademark rights by going after DemStore rather than the many other merchants selling products with the Rising Sun logo.  One commentator noted that the campaign has been careful not to pursue those exercising their free speech rights by using the logo as part of a critique or parody on the president.  It has instead focused on other merchants who could divert potential revenue, which should prove interesting following last week’s DNC, which reportedly had as many as 34 vendors lining the streets of Charlotte to sell campaign products.

The campaign got a preliminary injunction from Judge Emmett G. Sullivan in July, arguing that the website refused to take down the products after several cease-and-desist letters were sent.  It claimed that the website’s misuse would confuse consumers who would think they were purchasing products to support Obama’s official campaign.  Further, the campaign claimed it uses purchasers’ contact information to solicit additional contributions, thereby losing out on potential donors who unwittingly shop at DemStore.com.  Later in July, the parties reached a settlement that included a permanent injunction, and the website has now removed all products with the logo, focusing instead on items that use only the candidates’ names.  In a campaign where Mitt Romney has raised more money through new Super PACs formed after the U.S. Supreme Court’s Citizens United decision (558 U.S. 50 (2010)) (over $200 million in June and July), every dollar spent on products and follow-up donations may make a difference to the Obama campaign (which only raised $147 million during the same time).

DemStore’s CEO Steve Schwat remarked that he believed political campaign logos should be free for anyone to use and questioned why any campaign would want to limit the proliferation of its image.  What do you think?  Should the public be allowed fair use of a political campaign logo, or should the campaign have the right to protect its intellectual property the same as any other commercial use?  Should it make a difference that DemStore is trying to make money off of the logo, even claiming its own intellectual property rights in its products?

–Kendall Short

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