Some of you may have seen some of the media coverage (maybe here, here, or here) regarding the Republican National Committee’s recent complaints about our shopkeepers’ use of the terms “GOP,” “Grand Old Party,” “Republican National Committee,” “RNC,” and various elephant designs.
To sum it up: back in February, the RNC demanded that CafePress “cease and desist from allowing vendors to utilize the federally registered trademarks of the RNC” and threatened legal action. While we’re open to working with trademark holders, something about forbidding our shopkeepers from using popular political symbols in the height of an exciting election season just didn’t seem right.
We figured that there’s got to be something in our Constitution that would guarantee our shopkeepers the right to speak openly about political issues…
The RNC wanted us to remove designs that were both supportive of Republicans and critical of Republicans. We wondered why they would ever object to our shopkeeper’s adorable design that featured a mommy elephant leading her tiny kid elephants, accompanied by the phrase “I’m raising my children RIGHT.” We did, however, understand why the RNC objected to the design at left…
(Last week, for probably the first time in CafePress history, the term “glory hole” was discussed in the CP Legal Department, thanks to a blog commenter.)
After this story hit the press, the RNC agreed to retract its threats of trademark litigation on the following terms:
- CafePress will not remove any of the content the RNC complained about.
- CafePress will send a notice to the shopkeepers whose content was listed in the RNC’s original complaint and whose designs consist solely of the precise trademarked elephant (displayed at right), the acronym GOP, or the trademarked elephant or acronym GOP with a border.
- The notice will inform these shopkeepers about the RNC’s licensing procedure, and those particular shopkeepers will be required to use the RNC’s licensing process within a reasonable period of time.
- CafePress will monitor our shopkeepers’ progress through the RNC’s licensing system, and CafePress reserves all of its rights in the event that our shopkeepers have problems obtaining licenses to use the RNC’s trademarks.
While we feel that the RNC’s registered trademarks are a vital part of the political discourse in this country, this compromise seemed reasonable. The vast majority of our shopkeepers’ designs are super expressive and consist of much more than just the trademarked elephant or the acronym GOP. We’ve got pink elephants, tattooed elephants, and an elephant that appears to have a real problem digesting donkeys.
We’re all happy that we were able to reach a friendly compromise with the RNC, but the intellectual property geeks in the CafePress Legal Department are somewhat disappointed that we did not have an opportunity to litigate the legal issues surrounding this dispute.
The RNC’s complaint raises interesting issues about the interaction between the First Amendment and trademark law. Now more than ever, folks are using T-shirts, bumper stickers, and buttons to express their political opinions. In Mattel v. MCA, the 9th Circuit held that certain trademarks can become such an important part of our culture and language that the First Amendment is implicated when a trademark holder attempts to quash expressive uses of the trademark. The court emphasized that “some trademarks enter our public discourse and become an integral part of our vocabulary . . . Trademarks often fill in gaps in our vocabulary and add a contemporary flavor to our expressions. Once imbued with such expressive value, the trademark becomes a word in our language and assumes a role outside the bounds of trademark law.” Mattel v. MCA, 296 F.3d 894, 900 (9th Cir. 2002).
We certainly believe that the RNC’s registered trademarks “assume a role outside the bounds of trademark law” because they are a vital part of this country’s political discourse. I mean, is there really any better way to express disdain for the Republican Party and Republicanism than this design?
So for now, the elephant is no longer in immediate danger of extinction on CafePress. And that is indeed cause for a grand ol’ party.
Thanks to all of our wonderfully creative and expressive shopkeepers, the bloggers, and tweet-happy elephant fans.
Also, a HUGE thank you to Paul Alan Levy, I am sure we would not have had such a quick and successful outcome without his superb representation and advocacy and the support of Public Citizen.
Whether proud Republican, or evolved Democrat, I think that anyone can agree that the RNC did the right thing.
Live long and prosper, elephant artists.
-by IPFreely (posted by admin due to IP Freely’s hectic schedule of fighting evil and otherwise making the world a better place)