Why Are Dead Presidents the Only Dead People with Trademark Protections?
Initial Question: Is It Illegal to Trademark a President’s Name?
Disclaimer: This post arguably constitutes legal advice and in a way I am your lawyer now. At the end of this post, I will no longer be your lawyer, unless I already was before.
A client asked me to research this recently. One of her investors insisted there was a special rule against trademarking a president’s name. I told my client I was fairly certain that this wasn’t true, but if she really wanted to be sure, I could spend about thirty minutes researching it at my hourly rate. She said she considered it worth following up on and gave me the green light.
First, for some general background, no trademark can be registered if it uses the name or likeness of any particular living individual without their written consent. This is generally only a problem if, in the eyes of consumers, the brand is clearly meant to reference a living person. For example, if you want to trademark a brand of cement called APPLE CEMENT, Fiona Apple probably won’t have a case against you unless you’re using a picture of her in your branding. However, if you want to trademark a brand of soda called LEONARDO DICAPRIO COLA, it likely will be a problem because most consumers will see the distinct name and assume the brand has been endorsed or developed by the famous actor. So here is the real question this blog post needs to answer:
Real Question: “Is there a special rule against trademarking a president’s name that doesn’t apply to any other class of person?”
To my surprise, my client’s investor was partially correct.
Living presidents don’t seem to have greater protections than any other famous person. What’s interesting is that deceased presidents with living widows do have an additional protection. (For the purpose of convenience, I will be using the word “widow” to describe a deceased person’s surviving spouse of any gender.) Dead presidents have a special privilege carved out for them in the Lanham Act — the U.S.’s primary trademark statute — which only applies as long as their widow is living. §1052(c) of the act states that no trademark can be registered if it “[c]onsists 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.”
Why Does This Rule Exist?
Why would they add such a specific and quirky carve-out to an otherwise extremely broad rule? I found no recorded legislative history pertaining to this rule, but here’s my best guess: The Lanham Act was passed in 1946, the year after Franklin Delano Roosevelt’s death, and signed by President Truman, so perhaps this carve-out was put in there specifically to protect Eleanor Roosevelt — who would go on to outlive her husband by 17 years — from people using her late husband’s name and likeness to sell products while she was still alive to see. My second best guess is that Harry Truman had his own wife Bess in mind and demanded that the rule be put in there, conflict of interest be damned!
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