Trademark law protections for the names of former presidents and the rest of us
Did George Washington have a favorite bed linen? We don’t know, although U.S. Trademark Reg. No. 4176575 claims to be GEORGE WASHINGTON’S CHOICE for various textiles.
The real George Washington did operate a distillery. Today, the organization that runs the Mount Vernon estate sells whiskey branded with the first president’s name. According to the Mount Vernon website, however, Washington himself did not brand the spirits during his lifetime.
While branding was not likely former President Washington’s top concern, it is more important for modern former presidents. And they are protected by a unique provision of U.S. trademark law.
Consent to register for living people…
All people – whether they’ve lived at 1600 Pennsylvania Avenue or not – have some protection from unauthorized registration of their names. U.S. trademark law prohibits registration of a mark that “consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” See, TMEP 1206.01
The USPTO rejected applications to register OBAMA BAHAMA PAJAMAS, OBAMA PAJAMA, and BARAK’S JOCKS DRESS TO THE LEFT over the appeal of the applicant, an individual who intended to sell sleepwear and undergarments using the marks. Former President Barak Obama’s fame and the relative uniqueness of his name were factors in the decision, but the same law would apply to any living individual (as we recently discussed with regard to Luka Dončić).
…and dead presidents
Trademark law also bars registration of 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.” In other words, protection for presidents carries beyond the grave. See, TMEP Section 1206. For example, in 1973, registration was refused for the mark EISENHOWER and variations while former President Dwight Eisenhower’s widow was still alive.
As a practical matter, presidential foundations often own rights to presidential brands which can be maintained and enforced as long as the brands are used. In addition, right of publicity laws, which vary from state to state, often recognize post-mortem rights that can be enforced by the estates of celebrities.