July 17, 2008
Republican Party: Hands Off the Elephant; GOP’s Trademark Claims Stifle Political Speech
Statement of Paul Alan Levy, Attorney, Public Citizen
Unlike most trademark abuses, the latest example comes not from a company looking to suppress critical speech but from the Republican National Committee (RNC), which has threatened to sue CafePress.com for allowing users to create and sell T-shirts, stickers and other items bearing designs that use the “GOP” acronym or various portrayals of elephants.
CafePress, the leader of user-generated commerce, provides an online marketplace that offers sellers complete e-commerce services to independently create and sell a wide variety of products, and offers buyers unique merchandise across virtually every topic.
The RNC trademarked GOP in 1997 and a stylized elephant showing three stars across its body in 1995, despite the fact that these Republican Party references have been in popular use since the 1870s. Using its trademark registrations, the RNC seeks to suppress the use of GOP and elephant images that refer to Republicans.
Symbols and acronyms such as these provide an important way to refer to major figures in our society and in our culture, and threats of litigation, impoverish our public discourse. Even worse, the lawsuit that the RNC has threatened against CafePress, which is represented in this matter by Public Citizen, comes during a hot election year when the public should be empowered to express its political views, not subject to suppression of those views. An energized political season sees both favorable and critical political expressions, which is at the heart of a healthy dialogue that Americans treasure.
Although some of the uses of the elephant and “GOP” are certainly critical of the GOP, the majority of the images on CafePress over which the RNC has threatened to sue reflect positive opinions about and in support of Republicans. Several examples of the designs that the RNC seeks to suppress, along with a complete listing of the images about which the RNC complained, can be found on the Consumer Law and Policy Blog.
CafePress made several attempts to reach out to the RNC’s counsel to raise some of these issues and to determine whether the RNC has any legitimate concerns that can be accommodated while respecting the free speech rights of CafePress users. Time after time, the RNC refused to talk and its only response to CafePress’ efforts was to reiterate its demands and threaten treble damages. It appeared that this dispute was headed for the courts.
The case will raise the interesting question of how traditional concepts of trademark law apply to purely political speech about one of the major national political parties.
Only after the press started calling the RNC to inquire about its position did the RNC finally pick up the phone and call us back; we are starting to talk about a resolution to the controversy that respects the RNC’s interests, while also respecting the First Amendment rights at issue. We hope that the both sides can use this discussion process to help the RNC pull back from the brink of litigation against users of the CafePress service, whom are using the service to express their political views, whether such views are in support of or critical of the Republican Party.