The Federal Trademark Statute Assumes Hillary Can’t Win

HiliaryToday’s example of unintentional sexism comes to us from Section 2(c) of the Lanham Act.  On its face, the language of the statute assumes that someone other than Hillary will win the 2016 presidential election – and it won’t be Jill Stein.  It could be Donald Trump, Bernie Sanders, Gary Johnson, or your dad, but it’ll be someone male.

Section 2 of the Lanham Act, 15 U.S.C. §1052, provides a list of things that can and can’t be registered as trademarks on the principal register. Section 2(c) begins by providing that a trademark will be refused registration if it “[c]onsists or comprises a name, portrait, or signature identifying a particular living individual except by his written consent . . .” So, you can’t register the name or likeness of a living person (President, candidate, celebrity, or random Schmoe) as a trademark without their consent.  Fair enough.

This innocuous first clause raises nary a feminist eyebrow, and has actually assisted Hillary’s campaign.  Recently, an application for HILLIARY, used in connection with campaign merchandise, held up the Clinton campaign’s application for HILLARY FOR AMERICA for over a year – but Hillary eventually prevailed.  Because she is a living person, Section 2(c) blocked the attempt to register an obvious pun on her name.  It’s an amusing story, and a cautionary tale to politicians who wait to file trademark applications in the hopes of not spoiling the announcement that they’re running for President (news flash: everyone already knows).

Bill and HillaryThe next part of Section 2(c) didn’t come up in the HILLIARY dispute, but it has special relevance to the Clintons as it expands the protection provided to Presidents. Specifically, the second clause of Section 2(c) provides that one may not register the “name, signature, or portrait of a deceased President of the United States” during the life of the President’s surviving spouse. But once the presidential couple is reunited in that big White House in the sky, have at it!  GEORGE WASHINGTON brandy, I AM ABRAHAM LINCOLN baby bodysuits, and TEDDY ROOSEVELT African-style furniture for everyone! Obviously, this has some rather perverse implications. One can imagine a rush to prepare trademark applications for the name of a beloved and departed President before their spouse’s funeral has been held; or, even worse, the first time the spouse makes a public appearance looking a bit peaky.

But none of the above is what makes Section 2(c) sexist. What makes it sexist is that the statute doesn’t say “the President’s spouse.”  It actually says: “his widow.”

In fairness to the Lanham Act, this section is old.  Like your beloved granddad who calls all women “toots,” Section 2(c) is of another time.  It’s well-meaning, but probably in need of some gentle correction.

Perhaps Hillary won’t be the test case for determining the true legal import of the “his widow” language, even if she wins.  Actuarial tables suggest that she’ll outlive Bill.  If that’s the case, and she doesn’t remarry, trademark law would recognize her as just another Presidential widow, with whom the stodgy old Lanham Act would be entirely comfortable.

Sooner or later, however, this issue will rear its head.  A female President – survived by a husband or by a wife! – won’t be outlived by “his widow,” and some smart aleck will make the argument that the statute doesn’t afford that surviving spouse the same courtesy it granted to all the long-lived First Ladies who came before.

What will the USPTO and the courts do? They’ll have to interpret the statute in a gender neutral way, finding themselves in the awkward position of explaining that the law only LOOKS sexist. In the meantime, while the Lanham Act hasn’t declared its support for any particular candidate, it certainly doesn’t appear to be rooting for HILLARY FOR AMERICA.

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