Consumer Law

Can the RNC forbid the use of an elephant or "GOP" to identify Republicans?

By Paul Levy

by Paul Alan Levy

The latest abuse of trademark law to suppress discussion of topics of substantial public interest comes from not from a company, like most of the trademark abuses previously discussed on this blog, such as here and here, but from the Republican National Committee, which has threatened to sue CafePress.com because its users are selling t-shirts, stickers and other items bearing designs that refer to Republicans and Republican candidates using the initials "GOP" or using various portrayals of elephants.

Although these references have been in popular use since the 1870's, and owe more to Thomas Nast than to the Republicans themselves, back in the 1997 and 1995, respectively, the RNC trademarked the initials "GOP" and a stylized elephant showing three stars across its body.  Relying on these trademarks, the RNC has been trying to suppress the use of the initials or an elephant to refer to Republicans generally, such as in the images that appear above and on the left.

Symbols and initials often provide a popular way to refer to major figures in our society or our culture, and threats of litigation such as these impoverish our public discourse.  More generally, we might ask why the RNC has chosen an election year to try to suppress speech about the Republican Party, especially since many of the images are highly favorable to their cause.  Many of the CafePress users appear to be Republican grassroots activists.  Is this the right year for RNC staff members to start going after their own supporters?

Indeed, although some of the uses of the elephant and "GOP" are certainly critical of the GOP, the majority of the images over which the RNC has threatened to sue reflect positive opinions about Republicans.  Several designs simply put the elephant logo on a t-shirt, so that the wearer can walk around bragging about his or her adherence to Republicanism.  Others make highly favorable comments on Republicanism, such as a design portraying a larger elephant trailed by two smaller elephants and the words, "I'm raising my children right," or a picture of an elephant and the initials GOP accompanied by "Don't be an ass, Go Republican."  Several other designs place an elephant image next to the name of a Republican candidate.  Shouldn't the RNC want more of these images displayed?

Some other designs are highly negative, such as a sticker about "when fascism comes to America," a portrayal of an elephant leading three sheep and the words, "wake up sheeple!," or a portrayal of a figure labeled "GOP" peering into a toilet stall labeled "men" and occupied by a figure.  But these are clearly critical uses that are protected by the First Amendment, not to speak of fair use principles of trademark law.  So it is hard to imagine that any intelligent Republican lawyer really thinks he could successfully suppress this sort of speech.  So is this just an attempt at intimidation?

CafePress has tried to reach out to the RNC's counsel to try to raise some of these issues, and to determine whether the RNC has any legitimate concerns that can be accommodated while respecting the free speech rights of CafePress members.  But until this morning -- when a reporter called to ask questions about the RNC's position -- the RNC refused to talk, and its only response to CafePress' efforts to be reasonable had been to reiterate its demands and threaten treble damages and attorney fees.  So it appeared until now that this dispute is headed for the courts (Public Citizen will be representing CafePress). The RNC is now discussing whether there is any middle ground that accommodates its interests as well as the First Amendment rights of CafePress and its users.  We hope that  cooler heads prevail at the RNC, and we can resolve this issue short of litigation.

If the case does go forward, it will raise interesting questions about how well traditional concepts of trademark law apply to purely political speech about the functioning of one of the major national political parties.  There is, to be sure, no question that non-profits can obtain and enforce trademarks, as in the dispute between the NAACP and the NAACP Legal Defense and Education Fund.  Trademarks have at least some role to play with respect to fundraising even by smaller political parties, as in the United We Stand case.  But when a popular acronym or symbol is used to express adherence or opposition to a major political party, different considerations are at play, and the courts will need to decide whether, for example, such traditional concepts as "likelihood of confusion" or "likelihood of dilution" can properly be deployed to limit pure political speech about the biggest players on our political landscape.

The complete set of images that the RNC is trying to suppress can be found here.

Update:  Ben Smith, the reporter for Politico, whose call to the RNC apparently spurred its willingness to return our telephone calls, writes about the story here.

Full post as published by CL&P Blog on July 17, 2008 (boomark / email).