When Your Own Brand is Worthless, Just Steal Another?

Guest post by Law Prof.

Apparently, it’s gotten to the point where McCain don’t expect enough people to be motivated to pay attention to his own (frankly uncreative) logo — that star between two arrow-like lines. So yesterday McCain’s own ad campaign was prominently displaying Obama’s trademark flag-sunrise. (See the screen-cut from fivethirtyeight.com) Unfortunately for McCain, that is what we in the intellectual property legal field call “trademark infringement.” While few people are likely to be confused once they click-through to “speak out”, as the ad requests, it doesn’t eliminate the initial confusion. If Burger King ran a similar web ad with McDonalds’ trademark equally prominent and BK’s equally hidden, BK would be creating initial interest confusion (and I think that there might be an argument even if the ad said “tell Mickey D that you like your hamburger broiled not fried”). First Amendment law protects a lot of speech, but won’t protect against such confusion even in political speech, methinks. The key is that everything in TM law is to be considered in consumer/observer context — and, in the context of web ads, TM owners run all sorts of odd pitches and requests for “taking a poll” just to get people to click a link. And people often do respond with an immediate, almost instantaneous, mouse-click. Many people are likely to click through to the next page before realizing that it’s not an Obama ad – especially in the midst of a heated election cycle. TM control becomes even more powerful in this context. Of course, all that the Obama campaign could do in this situation is seek a Temporary Restraining Order (or ask the ISP to pull the ad). But, more importantly, when it’s one week until the election and you know that your own trademark won’t inspire people to act, it’s time to call it quits.