-Wes Anderson, Attorney
At this early stage in the 2016 election cycle, it’s difficult to predict much of anything, but if Hillary Clinton wins the Democratic nomination and, ultimately, the presidency, I can say for certain it will have an unprecedented effect on a lesser-known quirk of trademark law.
Many practitioners and laypersons are familiar with the provisions of Section 2(c) of the Trademark Act, which prohibits registration of a mark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” 15 U.S.C. § 1052(c). This, of course, is to prevent others from trafficking in someone else’s personal name, and confusing consumers as to source or affiliation. It also is an absolute bar to registration – the Supplemental Register is not an option, as it would be for descriptive marks.
Less frequently cited is the remainder of the statute, which provides additional protection for former Presidents of the United States:
Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased president of the United States during the life of his widow, if any, except by the written consent of the widow.
For any other individual, right up to the Vice President, a personal name is no longer barred from registration under Section 2(c) if that person is deceased. But for Presidents, the statute provides protection not just during each person’s life, but after the President’s death and “during the life of his widow.” This, presumably, is to provide additional protection for a name that will remain famous and well-recognized long after that former President passes away.
You may see where I’m going with this – Bill Clinton, of course, is already protected under Section 2(c) as he is a living individual. Given his notoriety, there no need to look far for examples. Back in 2008, an enterprising individual’s application for BILL CLINTON, THE FIRST MAN was summarily refused by the PTO under Section 2(c). This means that, should the former President pass away before his wife, Hillary, similar CLINTON marks would be barred from registration during her life.
But if Hillary wins the Presidency, the Clintons will effectively enjoy double protection. Bill Clinton and Hillary Clinton would now take the role of both president and “widow,” or “widow[er]” depending on how things shake out. This would, of course, be the first time that Section 2(c) could be prospectively applied in such a way – one former President’s lifetime protecting another former President’s personal name. (One could argue that John Quincy Adams may have helped protect his father John Adams, but, alas, the Lanham Act was not around in 1825).
Also perhaps worthy of note are the male-oriented pronouns and names – “his” and “widow” – though these of course date back to the statute’s enactment in 1946 and would have no substantive effect if a woman is elected President. Still, if Congress has some spare time on its hands, perhaps Section 2(c) would be ripe for amendment – just to be sure.