President Barack Obama’s 2008 path to the White House has been held out as an example of incredibly successful political branding, perhaps the most powerful in recent memory.  Branded with words like “Hope” and “Change,” Pres. Obama’s presidential campaign was marked by a distinctive and now familiar “Rising Sun.”  In a complaint filed Friday June 1 with the U.S. District Court for the District of Columbia, President Obama’s campaign organization, Obama for America (OFA), brought suit for trademark infringement against the website DemStore.com and its parent company, Washington Promotions & Printing, Inc. for misappropriating this Rising Sun mark.  DemStore, a website selling politically-themed merchandise, has allegedly produced and sold unlicensed products bearing the Obama campaign’s registered Rising Sun mark and the 2012 campaign logo incorporating the mark. OFA explains in the complaint that its revenues from the sales of the goods bearing the marks are construed as campaign contributions, subject to campaign finance restrictions. The complaint goes on to say that OFA additionally collects data and contact information from its site’s customers that the campaign can then use for future fundraising efforts. DemStore’s use of the logo to sell political merchandise diminishes the organization’s capacity to solicit contributions and decreases opportunities for OFA to connect with supporters. The organization goes on to claim that after the campaign’s extensive use of this logo in the past two election cycles, consumers have come to associate the logo with the Obama campaign as the source of the goods and will likely be confused as to the source of the goods sold at DemStore.com.

In response to the campaign’s attempts to enjoin sales, the website’s Executive Officer, Steve Schwat, has expressed disappointment over the complaint, stating that there are “hundreds, if not thousands” of retailers using the Rising Sun logo without a license and calling this current complaint an example of “selective enforcement.”  Schwat went on to say that he found the action “commercially [and] politically odd [since] a campaign is protecting a logo that you’d think the campaign would want to be freely used and reproduced.” A cursory Google search of “Obama O” merchandise returns over 14,000 hits, most of which bear no obvious connection to the Obama campaign nor contain any statement of licensing.

The campaign claims that it attempts to strictly control consumers’ experiences on its campaign website and that it has a considerable interest in maintaining the campaign’s message.  These claims, however, are complicated by the fact that OFA was aware of DemStore’s unauthorized use as early as 2007 but waited until the year 2011 to issue a cease and desist letter.  Perhaps this is an example of OFA “sleeping on its rights” for strategic reasons, rendering DemStore able to answer with the affirmative defense of laches for this unexplained delay.  Trademarking this type of political campaign speech highlights the particularly tricky balance between the campaign goals of aggressively spreading candidate awareness among voters and protecting a mark from free-riding merchandisers who do not contribute to the campaign.  Campaign goals can certainly change from one election cycle to another, but tailoring and reformulating a branding strategy to reflect a volatile political climate have the potential to affect the country in ways far more important than bumper stickers.

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