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The lines between politics and commerce are blurring — which comes as no surprise. Politicians and businessmen alike are paying more and more attention to building up the value of their “brand.” Time, after all, is money. Trademarks and brand names save both by providing a shorthand means of conveying information. The fun part comes when politicians appropriate commercial catch phrases without permission, or when businesses peddle their products by making unauthorized use of a politician’s public persona. Can the brand be protected? HERE’S THE BEEF Consider the following examples: � In 1984, Wendy’s launched its popular “fluffy bun” commercial featuring senior citizen Clara Peller snapping, “Where’s the beef?” Democratic presidential nominee Walter Mondale mimicked the ad — without the permission of Wendy’s — in a political zinger directed at opponent Gary Hart’s lean “New Ideas” campaign. � In 1996, in the midst of another presidential campaign, the conservative Concerned Women for America, owners of the service mark “Putting Families First,” sought a temporary restraining order to block the Democratic Congressional Campaign Committee from using the phrase “Families First” in connection with its legislative agenda. The Democrats waved the First Amendment, and U.S. District Judge Thomas Penfield Jackson denied the injunction. � Later that same year, presidential candidate Bob Dole launched his war on drugs by turning Nike’s “Just Do It” slogan into an admonition for abstinence, “Just Don’t Do It!” Nike promptly expressed its chagrin. � In 1994, when then-House Speaker Newt Gingrich was campaigning against pork on Capitol Hill, Jerry’s Subs and Pizza wrote President Bill Clinton’s public persona into its radio ads. A Clinton sound-alike tells his buddy, “Newt loves bacon.” When White House lawyers demanded that Jerry’s drop Clinton from its ads, the sub vendor brashly answered with more commercials, including one in which the presidential character wolfs down a pizza: ” Jerry:‘Gosh, sir, you ate that so fast, you practically . . . Clinton:‘Inhaled it?’ “ � Hollywood joined the fray in 1997 when Robert Zemeckis, director of the movie Contact,used actual film footage of Clinton to portray the president reacting to fantastic alien messages. The White House was not amused. White House Counsel Charles Ruff wrote to the filmmaker: “By appropriating President Clinton’s image and words in this manner, you have essentially given him a role in your film without authorization. . . . We believe your use of the role you have created for President Clinton in Contactto promote and advertise the film is improper.” � In the most recent presidential race, the campaign of third-party candidate Ralph Nader drew a lawsuit when it imitated what MasterCard calls its “famous and renowned ‘Priceless’ advertising campaign.” The ads feature a series of items with dollar amounts and then an intangible, such as “a day where all you have to do is breathe,” described as “priceless,” followed by the tag line, “There are some things money can’t buy. For everything else, there’s MasterCard.” The Nader campaign used that tag line — and the entire look and feel of the ad campaign — to skewer mainstream politicians and their wealthy contributors. First, the ad shows George W. Bush enjoying a meal as the voice-over intones: “Grilled tenderloin for fund-raiser, $1,000 a plate.” Then Al Gore appears as the voice asserts, “Campaign ads filled with half-truths, $10 million.” Another Bush shot follows as the voice states: “Promises to special interest groups, over $10 billion.” Finally, the tag line suggests that Nader’s effort to speak political truth is “priceless.” ABSOLUTELY ‘PRICELESS’ In this last case, MasterCard initially sent a cease-and-desist letter to the Nader campaign, asserting that “consumers may be left with the mistaken impression that MasterCard is now somehow involved with or endorsing the candidacy of Mr. Nader.” When Nader continued to run the ad, MasterCard sued in federal court in Manhattan. Its complaint asserted federal claims for trademark infringement, dilution, and copyright infringement, and state law claims for unfair competition, misappropriation, dilution, and deceptive trade practices. Was the Nader campaign actually creating confusion? Diluting the distinctive features of the MasterCard ad? Or merely being clever? Certainly, the Nader ad called to mind a shorthand message made popular by MasterCard. But the political ad was not designed to entice consumers to buy products or services. Its object was to sell a message that Nader, unlike the major-party candidates, was not compromised by special interest contributions and that he should be included in the televised presidential debates. And it did so without implying any actual connection to MasterCard. Nader attorney Anthony Fletcher, senior counsel in the New York office of Fish & Richardson, found no small irony in the fact that people had been telling the consumer advocate to “lighten up” for years, but when Nader finally injected humor into his public persona, he found himself sued by the “sanctimonious merchants of high-interest consumer debt.” On the other hand, the Nader ad did take a free ride on MasterCard’s investment by using a valuable format that the company had a strong incentive to protect. MasterCard’s brand image was borrowed to promote Nader’s political views. Nader even used the dispute over MasterCard’s efforts to protect its intellectual property to generate additional press for his campaign. U.S. District Judge George Daniels denied MasterCard’s request for a temporary restraining order, finding insufficient evidence to conclude that there was irreparable harm or a likelihood of success on the merits. Daniels also found insufficient evidence that the limited airing of Nader’s ad would lessen the capacity of the “Priceless” format to identify and distinguish the services that MasterCard offers. MasterCard has pursued its damage claims since the election ended. As of this writing, Nader’s summary judgment motion had been pending since July 2001. LEAVE NO MARK BEHIND The rulings in the Concerned Women for America and MasterCard cases show that courts are particularly solicitous of First Amendment concerns when speech, even allegedly infringing speech, advances a political message. This lesson was not lost on Republican strategists. Foiled in 1996 in their efforts to protect the mark “Putting Families First” by restricting its use to groups sharing a conservative social agenda, Republicans cleverly turned the tables in 2000. The Children’s Defense Fund in 1991 had adopted the mark “Leave No Child Behind” to identify its advocacy services. George W. Bush’s campaign adopted that mark to identify elements of the candidate’s platform and to serve as the theme of the first day of the Republican National Convention. Perhaps presaging the outcome of the MasterCard suit, the Children’s Defense Fund did not sue. Instead, founder and president Marion Wright Edelman countered with a July 2000 New York Timesop-ed piece entitled “There’s No Trademark on Concern for Kids.” “If plagiarism is the sincerest form of flattery,” she observed, “I am more than happy to be flattered that the theme of the Republican National Convention’s opening night on Monday is ‘Leave No Child Behind.’ ” But, she cautioned, if the GOP wants the fund’s theme, it will have to adopt its program as well. President Bush later named his school reform initiative the No Child Left Behind Act, which became law last year. (And last month, Democrats countered with the proposed Act to Leave No Child Behind.) With an eye to misappropriation closer to home, Bush in February 2001 announced policy guidelines prohibiting use of the names, likenesses, words, or activities of the president, his family, or the White House itself in advertising or in commercial promotions that suggest any connection between the president, his family, or the White House and a product, service, or endeavor. In other words, like a good Texas cattleman, Bush is protecting his brand. Steven P. Hollman is a partner in the D.C. office of Hogan & Hartson specializing in intellectual property litigation. He can be reached at [email protected].

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