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Presidential tweet criticized for ... trademark misuse?

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Some are still having a hard time accepting President Trump's use of Twitter to announce government policy or to express his personal or political opinions. One of his recent tweets, however, raised trademark issues when he modified the line "Winter is Coming" from the wildly popular HBO series "Game of Thrones." 

According to a search of live trademarks on the U.S. Patent and Trademark Office website, the original phrase, "Winter is Coming," is a registered trademark of HBO. According to ScreenPrism, the phrase not only identifies the series, it has evolved to symbolize metaphors in the series' stories such as "generally expressing the sentiment that dark periods occur in life."

Presidential spin   

In the context of announcing that he will be putting sanctions back on Iran, the president's tweet sent out a modified version: "Sanctions are Coming." He used a unique font resembling that which HBO uses in its promotional materials. An article in the ABA Journal reprints the tweet, including the image of the modified phrase imposed on top of a stylized photo of the president. The article also reproduces HBO's responsive tweet: "How do you say trademark misuse in Dothraki?" 

Trademark misuse 

Trademark misuse, taken literally, is probably not what HBO means. Trademark misuse, as explained in an article in Above the Law about this tweet, is a rarely used "defense premised upon the trademark owner's use of its own trademark in violation of the law," such as in an illegal anti-competitive fashion. 

Infringement? 

However, HBO reportedly made a statement to CNN, according to Above the Law, that the president's use misappropriated the trademark, by which they likely meant that he allegedly infringed the mark. However, realistically, the similarity between the two uses are probably not going to confuse anyone into thinking they came from the same source as required for infringement. 

Parody and First Amendment

One could ask whether the tweet is protected parody - a satirical or humorous use, even if for commercial gain, that spoofs a trademark. However, fundamentally, the president is not selling any commercial product or service, and therefore one need not reach parody question. His use of the trademark or its graphical presentation is protected noncommercial speech, particularly because it relates to matters of public interest, and it is fully immunized under the First Amendment.

HBO knows this, but you can't blame it for doing what it can to make sure the public knows what its trademark rights are.

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