Political Parties and Trademarks

 Photo by  Jomar  on  Unsplash

Photo by Jomar on Unsplash

Political parties operate just like any other brand. Each political party has distinctive colors, logos, and brand identity. For example, you associate the Republican elephant or the Democrat donkey with a particular source. You may not like that source or agree with that source —but you know the source. Trademarks are an important part of branding, and political parties need trademark protection to promote their ideals and endorse candidates. However, political parties face challenges with the United States Patent and Trademark Office (USPTO), and the USPTO has no clear guidelines for political parties to follow. That said, if done properly, a political party can hold a registered trademark. 

Republican Party and Democratic Party Trademark Portfolios

Neither the Republican Party nor the Democratic Party holds registered word marks for their names. The Democratic Party attempted to register a service mark in 1992 but abandoned their application later the same year. The Republican Party, on the other hand, has never sought federal registration for its name. In fact, the only national political party with a registered word mark is the Libertarian Party (Reg. No. 2423459). 

The national political parties do hold a few federally registered trademarks in their trademark portfolios. The Republican Party holds two registrations for its elephant logo in connection with political activities (Reg. No. 1892445 and Reg. No. 1908397), and the Democratic Party holds a trademark registration for a logo that is an uppercase “D” with a circle around it. (Reg. No. 4139881). Additionally, the Democratic Party holds a trademark for I WILL VOTE. (Reg. No. 5061751)

Issues Political Parties Face When Applying to Register Trademarks

Political parties face a few issues when attempting to register trademarks. First, political parties often receive a “merely descriptive” refusal. The party wants people to know what it stands for when they hear the party’s name, therefore the political party’s name often stems from a quality of the party. This makes the political party names prone to “merely descriptive” refusals, as the name can be said to “merely describe” a quality of the party such as focusing on environmental issues (hence “green”). For example, the CHRISTIAN DEMOCRATIC-REPUBLICAN PARTY and the NATIONAL INDEPENDENT both received a merely descriptive refusal for their applications. (Serial No. 77039315 and Reg. No. 4482846). 

Additionally, political parties often receive “geographically descriptive” refusals. Chapters of political parties need trademarks too, and often the location of the chapter is included in the trademark. Political parties with geographic locations in their name are almost guaranteed a “geographically descriptive” refusal. For example, both the REPUBLICAN PARTY OF LOS ANGELES COUNTY and the DEMOCRATIC PARTY OF NEW JERSEY received “geographically descriptive” refusals. (Serial No. 85056861 and 85403796).

A “geographically descriptive” refusal isn’t the only problem local political party chapters might face. As stated above, the Republican Party holds its elephant logo as a registered trademark. The USPTO has issued “likelihood of confusion” refusals to local Republican Parties applying to register a logo with the Republican elephant logo. Even though a local Republican chapter is affiliated with the national Republican Party, the USPTO sees them as separate marks and prohibits local chapters from using the elephant in their own trademarks. For example, THE REPUBLICAN PARTY OF LOS ANGELES COUNTY and REPUBLICAN PARTY OF PENNSYLVANIA both received “likelihood of confusion” refusals for using the Republican elephant. (Serial No. 85056612 and 86038833). 

Do Political Parties Perform a “Service” Under the Lanham Act?

In United We Stand the Second Circuit Court of Appeals ruled political activities fall within in the meaning of “services” under the Lanham Act. United We Stand Am., Inc. v. United We Stand, Am. N.Y., Inc., 128 F.3d 86. The court reasoned that political parties provide a valuable service to voters by adopting a mark and using that mark to endorse candidates. Voters need to be able to distinguish those marks, so they know which party supports which candidate. If trademark protection were not allowed, any group trading in political ideas would be free to distribute publicity statements, endorsements, and position papers in the name of the Republican Party, the Democratic Party, or any other party. The court noted, “the resulting confusion would be catastrophic.” Id. at 90.

Should Political Parties Register Collective Marks?

The Trademark Manual of Examining Procedure does not speak to the registrability of political party names. However, the term “political parties” does appear in § 1304, which addresses collective marks. Collective marks are a type of trademark that show membership to a particular organization. The term “political parties” appears under § 1304.02(a)(i)(C), which addresses specimens and states, “Flags, pennants, and banners of various types used in connection with political parties, club groups, or the like could be satisfactory specimens.” This suggests that political parties should register their trademarks as collective marks. Political parties need to use their marks to endorse candidates, and using a collective mark would allow a party to show a candidate belongs to its group and ideals. 

In reality, political parties do not take the collective mark route. A trademark search reveals no major political party has registered a collective mark. The Green Party applied to register a collective mark in 1992 but abandoned the application. (Serial No. 74247135). Neither the Democratic Party nor the Republican Party holds a federally registered collective mark. 

Conclusion

While it’s clear political parties are brands and need trademark protection to promote their ideals and endorse candidates, there is significant uncertainty on the best path forward for them to achieve this end. Given increasing tensions within the major U.S. political parties, this may be the year the USPTO sees an uptick in applications and has to clarify its approach.

Patrick Lewis