With Election Day finally upon us, we wait in anticipation (and with a fair amount of nail biting) as the fate of our country is decided. But that doesn’t mean there isn’t room for some trademark fun, looking at how law and trademarks can collide. But first, a reminder — don’t forget to dial into our upcoming Trademark Basics webinar, Tuesday, November 15^th at 1pm Eastern Time for a live overview of the many issues we have discussed in the last few weeks. Register here today!

And now, back to the law. Even seasoned politicians can get into trademark trouble when crafting their campaign branding strategies. We’ve summarized three somewhat amusing cases below as an Election Day stress reliever!

• One Quacky Dispute. Tim Hagan, a former candidate for the for governor of Ohio, ran a campaign against incumbent Governor Robert Taft riffing off of the famed “AFLAC DUCK” commercials, in which a white duck repeatedly quacks the AFLAC insurance company’s name in a distinctive, nasal tone. Hagan’s internet commercials included a crudely animated character made up of Governor Taft’s head sitting on the body of a white cartoon duck, with the duck quacking “TaftQuack” several times during each commercial. Hagan broadcast these commercials on his website, www.taftquack.com. The insurance company thought it was no quacking matter and filed a lawsuit in an Ohio district court. The court ultimately determined that the use of this character or the AFLAC marks did not constitute trademark infringement because the ads constituted core political speech warranting First Amendment protection.

• One Sweet Campaign. Over the past several years, The Hershey Company has been embroiled in legal battles with Maryland State Senator Steve Hershey for running campaigns that mimic the trade dress of a Hershey chocolate bar wrapper. In 2002, Hershey ran for county commissioner of Queen Anne’s County. During that campaign, he used designs with a dark brown background and HERSHEY printed in bold white font. Hershey wrote to Mr. Hershey, asking him to stop his use of the Hershey trade dress in his campaign signage. Mr. Hershey stopped using the campaign materials after the 2002 election. In 2010, Steve Hershey ran for state delegate using a campaign logo and signs featuring a similar brown background, bold white font, and a white border. Again, Hershey contacted Mr. Hershey about the use of the design, and accommodated him by allowing Mr. Hershey to use his existing materials for the primary election on the condition that he cease using the trade dress in future campaigns. Unfortunately, Senator Hershey did not adhere to the agreement and, in April 2014, began campaigning for re-election to the state senate using a campaign logo with a Maryland flag in dual tone brown as the background, the word HERSHEY in white font, and STATE SENATE in smaller font below. The parties attempted to resolve the dispute without success and The Hershey Company ultimately sought an injunction against the Senator.

The Senator argued that The Hershey Company’s allegations raised serious questions about his First Amendment right to use the mark because his use was not “in connection with the sale, offering for sale, distribution or advertising of goods or services.” The US District Court in Maryland disagreed, finding that the term “goods and services” included “political activities.” It further held that First Amendment protections do not apply when the trademark is used to associate a political candidate with a popular consumer brand, and are not otherwise using the mark for parody, political commentary, or other communicative purposes. Accordingly, the court refused to dismiss the case and entered a preliminary injunction, barring Senator Hershey from further use of the campaign logo.

• And a Cease and Desist Letter….Priceless. One of the longest and most successful advertising campaigns ever is the MasterCard “Priceless” series of commercials. Each would present a heart-warming vignette, such as a father taking his son to a baseball game, with three purchases pictured and described along with the price of each. Then the clincher: “Real conversation with your son (or some other intangible that cannot be purchased): Priceless. There are some things that money can’t buy. For everything else, there’s MasterCard.” Ralph Nader’s 2000 third-party run for the presidency focused on the theme that each of the two major parties was dominated by corporate interests. To make this point, he ran an ad featuring the following sequential scenes: “Grilled tenderloin for fundraiser: $1,000 a plate. Campaign ads filled with half-truths: $10 million. Promises to special interest groups: Over $100 billion.” Then, the final variation on the familiar refrain: “Finding out the truth: Priceless. There are just some things money can’t buy. Without Ralph Nader in the debates, the truth will come in last.”

The Nader campaign committee rejected MasterCard’s suggestion that it come up with an “original” advertisement. When the campaign refused to agree to pull the “Priceless” ad, MasterCard sued for trademark infringement and dilution by blurring. The court rejected MasterCard’s claims on the basis that there was little similarity between the credit and debit card business and voters were unlikely to believe that MasterCard was endorsing Nader. It rejected the dilution claim on the ground that it did not apply to noncommercial uses of a mark and, even if the ad was soliciting contributions, it was political speech and not commercial. There were also claims made on other legal theories, which were rejected as well and the court ruled in favor of Nader on all counts.

Why were Tim Hagan’s and Ralph Nader’s ads deemed worthy of protection when Steve Hershey’s was not? Simply put, Hagan and Nader were using the plaintiffs’ trademarks to convey a political message, but Hershey was simply using the Hershey trade dress to draw attention to himself, which was not protected political speech. (Or, perhaps, the explanation may just be that the Hagan and Nader ads were funny, and Hershey’s ads were not!)