Monday, December 13, 2010

Presidential No. 44: In Rare Section 2(c) Ruling, TTAB Affirms Refusal of "OBAMA BAHAMA PAJAMAS"

Rejecting Attorney Richard M. Hoefflin's lame arguments, the TTAB affirmed a Section 2(c) refusal to register the marks OBAMA BAHAMA PAJAMAS, OBAMA PAJAMA, and BARACK'S JOCKS DRESS TO THE LEFT for pajamas and briefs, because the record did not include the written consent of President Barack Obama, the living individual identified in the marks. In re Richard M. Hoefflin, 97 USPQ2d 1174 (TTAB 2010) [precedential].

Section 2(c) of the Trademark Act "absolutely bars the registration of a designation that identifies a particular living individual absent written consent." In determining whether a particular living individual with that "name" would be associated with the mark, the Board must consider "(1) if the person is so well known that the public would reasonably assume the connection, or (2) if the individual is publicly connected with the business in which the mark is being used." In short, this provision of the Act "is intended to protect the intellectual property right of privacy and publicity that a living person has in his/her identity."

Examining Attorney Karen Bush cited a January 2009 new story regarding the "obamification" that the nation had experienced over the year prior to Barack Obama's election as President: i.e., the manufacture of words from Obama's name. One "early online favorite" was "Obama pajama." The Board commended Ms. Bush for an "excellent job" in marshalling various media excerpts to demonstrate "the obvious - namely, that President Barack Obama is extremely well known." Each of the names "Barack" and "Obama" is "so closely associated with this particular historic individual that the usages of these names in applicant's three claimed trademarks will instantly create an association with the President."

Applicant Hoefflin feebly claimed that the terms "Barack" and "Obama" do not refer to any particular individual, and certainly not "the United States President Barack Hussein Obama II." The Board had no doubt, however, that the three marks refer to the 44th President of the United States. Section 2(c) is not limited in scope to full names, but encompasses "surnames, shortened names, nicknames, etc., so long as the name in question does, in fact, 'identify' a particular living individual."

Moreover, when an individual is so well known, he or she is entitled to the protection of Section 2(c) without having to show a connection with the involved goods or services. [E.g., EISENHOWER refused registration for greeting cards, PRINCE CHARLES for meat].

Applicant Hoefflin pointed to various third-party registrations for marks including given names like "George," "Ronald," and "Jimmy," but these names (unlike "Barack") are in common usage. And Hoefflin had the same problem with his surname evidence: the Examining Attorney showed that, while there are tens (if not hundreds) of thousands of persons having the surnames of the six immediate past presidents, the surname Obama appears in the same directory only 82 times.

Rejecting Hoefflin's assertion that the terms "Barack" and "Obama" are arbitrary and distinctive, the Board affirmed the refusal.

TTABlog comment: Do you think the term PALIN for lipstick would run into a Section 2(c) bar? How about for clothing? Greeting cards? Grizzly bear meat?

Did you note my clever heading? I went back and changed Friday's posting to Precedential No. 45.

Text Copyright John L. Welch 2010.


At 3:42 PM, Blogger Owen said...

Or perhaps Palin for wine? See 85048118. App. no. 77966405 has one argument around the rejection, but 77563394 did not (for cosmetics).


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