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

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.

Comments

[Links]

This is a stupid use of Trademark law...........shame on the elephant party.

[Rhymes With Right]

Given that the elephant logo long predates the application for trademark status, and the use of the initials "GOP" to refer to the Republican party has been a linguistic standard for well over a century, I question the validity of the trademarks themselves. After all, both appear to have been in the public domain more or less forever, and it is therefore difficult to see how the RNC could claim ownership of either.

[Freedom Rings]

Elephant destroyed by one Cafepress Shopkeeper in rebuttal to the recent C&D GOP logo issue- Too Funny!

[David W.]

Interesting. You know the Republican Party does have a right to protect its copyright which means that those shirt which say "I'm proud to be GOP" and stuff like that may fall under this copyright.

However, there is a great license for satire which is thoroughly protected by the First Amendment. This is especially true of political satire. And that license even allows the use of copyrighted material if it is used in satire and used to make a political statement.

So, the Republican Party may actually be successful in removing the pro-Republican shirts that simply display the three-star elephant or such phrases as "Proud to be GOP". Yet, fail to remove the anti-Republican shirts that display the three-starred elephant or the letters GOP.

I'm thinking of going to CafePress and designing a couple of t-shirts myself. Something like "Hey GOP!, I'll give you my t-shirt when you pry it out of my cold dead hands."

[Barb]

This is truly idiotic. I'm not a fan of Republicans, but the majority of uses of the elephant and GOP are positive. Are they going to print their own elephant t shirts for people to wear and show their affiliation? Please.

[aikanae]

I think the ultimate goal is to dumb down politics so it's not a matter of discussion (or headlines). My observation has been the GOP/RNC uses a several prong approach when attacking something directly (free speech) would be unpopular and create too much of a backlash. In this case they are seen as stupidly shooting themselves in the foot, creating few headlines.

If they are successful, the ink wouldn't dry before they went after their critics with all the ammunition they had; "We don't allow that", "not civilized", every argument they've used to eliminate the public from protesting or hearing the president speak in public. The spin machine would be in full force to head off any protests.

Since the majority of the population has no way to know they are the majority, the cultural norm would instantly be changed such that making political statements about policy issues (or facts) wouldn't be acceptable. That's the basis for political discussion and the majority of information we'd get would be about the latest tabloid scandal. That's the GOP ideal. It's hard to motivate anyone to vote without issues -and just the issues they want us to know about.

The thing is that they think their copyright issue would be 'under the wire' enough (with everything else going on) that won't create headlines or get much attention (true) and have it effectively accomplished before the elections. Congress probably won't see this as an issue to make a stand on.

From what I've observed of the GOP marketing machine, they are probably right. Even a successful defense of Cafe Press won't stop them from using spin to pressure GOP friendly groups to comply. They win either way. The GOP is hard for the average person to believe could happen here. It's the disbelief that realists are fighting. Your job is to create headlines.

With this kind of planning, staging and implementation, it's hard to defend the fact that the GOP hasn't been able to win a war against an impoverished, disorganized nation had few defenses less than one third the size of Texas.

[Gary O]

Umm... well, we elected them. We should be shot. Seems to me the RNC lawyers are screwing the RNC. But, they get paid to screw them. Trouble is, the members seem to be too dumb to see it.

[Paul Alan Levy]

Certainly if the DNC were to be dumb enough to send this sort of cease and desist letter, and then not reply to efforts to compromise, they would deserve the same response, and I personally would be anxious to do that case too.

As it happens, there is a variety of anti-Democratic material on the CafePress site -- indeed, some of the items that the RNC is trying to suppress express hostility to the Democrats (see the link to all of the challenged images near the end of my post), such as two images of smirking gray elephants, one pissing on "Hillary" and the other on "Liberals."

[jj]

Let's try the same thing with the Democrats. I expect the same response. Wake-up we are ruled (yes ruled) by the Republicrats/Demoblicans/Oligarchy. Money talks and the rest of us walk. As long as PACs and such are allowed to buy votes WE ARE SCREWED.

[VoteWithYourShirt]

If they were wise, they'd open their own shop on CafePress. In addition to our affiliate shops, we have a political shop on the list they gave as well. I have no problem removing the design, just as I have no problem ceasing my contribution to the party if they continue down this idiotic line.

[Right Wing Girl]

Bad move by the RNC. Yes, of course I'll side with Cafepress, being that my shop is on their hit list, but with good reason.

I went to great care to do my own version of the elephant logo, so as not to just rip off their logo. All of my designs are supportive of the Republican party. I've made a couple donations to John McCain's campaign with the money I've earned in T-shirt sales.

Personally, I think they should embrace Cafepress.com, and have them do a GOP T-shirt contest...tap into the 6.5 MILLION users of Cafepress and stir up some excitement for the Republican party. Not unlike the "artists for Obama" campaign going on. Think of all the good press that would stir up? And not to mention, some winning designs that the RNC could then sell...they could actually set it up with Cafepress to earn a small percentage of all sales relating to the RNC/GOP...funds that would go directly to the Republican party!

I do hope they come to an agreement & I hope the RNC realizes that this could end really bad or really good. And it's all up to them.

[Rebecca Tushnet]

Paul, this is a great entry and a great issue, but I have one minor quibble: I'm really pretty sure that the man on his knees in the toilet stall is not "peering in."

http://en.wikipedia.org/wiki/Glory_hole_(sexual)

[bitterapple]

Hmm... That's interesting. What's even more interesting is reading this article in light of the fact that in Washington State, some of the people running for partisan government positions (e.g. Dino Rossi) have chosen to run under the GOP flag, while others have chosen to run under the Republican flag. I wonder why?