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A closer look at taco trucks and baskets of deplorables

Politics takes issues around phrases and sound bites to a new level

Peter Lemire //September 21, 2016//

A closer look at taco trucks and baskets of deplorables

Politics takes issues around phrases and sound bites to a new level

Peter Lemire //September 21, 2016//

In our internet and meme-driven world, there always seem to be issues surrounding the ownership and protection of sound bites/short phrases/and or slogans. Election years take these issues to a whole different level.

Political speech makes a nice illustration of the sometimes rocky road to protecting short phrases and slogans. While one would think the law in this area would be pretty cut and dry, it can actually have a profound impact on businesses and their ability to protect their products, in this case apparel, and the slogans/sound bites/catch phrases used in conjunction with them.

Let’s appropriate some of today’s headlines to help us walk through this minefield. Luckily, the candidates, or their supporters, of the two major political parties have given us ample fodder to work with – “Taco Trucks on Every Corner” and “Baskets of Deplorables.”  Both phrases are somewhat catchy and would look good on t-shirts or bumper stickers. Each could also be used by either side, depending on the context.

First let’s turn our attention to the political realm and then we can discuss the commercial aspects. One of the first questions is whether the opposite side can utilize the phrase of the other party and whether the party that originally made the statement can prevent the other side from using it on products. First amendment considerations aside, the ability to restrict the usage of the phrases falls under the jurisdiction of intellectual property law.

There are three main areas of intellectual property law – patents, copyrights and trademarks. Patents cover inventions and are not relevant to the situation at hand. This leaves copyrights and trademarks as possible areas of protection.

Copyrights protect works of original artistic expression that are fixed in a tangible medium, and trademarks protect identifiers of goods or services used in commerce (think brand names, logos etc.). With copyrights, the rights initially vest in the author of the work, which in this case would be the party that originally made the statement. However, there could be an issue of whether they were fixed in a tangible medium; but more importantly, the Copyright Act expressly excludes individual words or short phrases from copyright protection. Therefore, copyright protection is also not applicable.

Trademarks protect source identifiers of goods and services in commerce. The interesting thing about trademarks is that the rights vest in the party that first starts using the mark in conjunction with its goods or services, not necessarily the person who conceived or “authored” the mark. Additionally, there are a whole host of other arguments, constitutional and otherwise, that would most likely come down in favor of the other side’s use of the respective phrase on t-shirts and bumper stickers not being a violation of trademark law.

Even in a purely commercial context, the use of short phrases on products can be problematic from a protection standpoint. Often times, the first to market strategy is going to rule the day. Companies or individuals need to get into the market quick, make their money by being the first into the market, and then watch as a flood of competitors enter behind them. If you come up with a witty or catchy phrase and want to sell products with it emblazoned on them, you can. However, you most likely will not be able to prevent other people from doing the same thing.

The witty phrase on a t-shirt does not identify the source of the goods to the consumer or communicate any of the similar consumer impressions that a valid trademark does. The consumer buys the shirt because they like the phrase or graphical design and most likely don’t know or even care about who produces the shirt. Because of this, the law has been wary to allow for trademark protection for items that are arguably a merely ornamental design as opposed to a brand.

To the contrary, when consumers see brands such as Nike, Under Armor, Tommy Hilfiger, Michael Kors, Levi Straus and Ralph Lauren, they invoke impressions that might include quality, style or performance. These impressions have been molded over time through the consumer’s experience and the company’s advertising and brand promotion efforts.   

What sort of strategy a company takes depends on where it wants to position itself in the marketplace. Apparel companies that want to build brand awareness and established clothing lines definitely want to invest in trademark portfolios.

Careful strategy and preplanning that takes into account trademark law is crucial for those companies looking to build those brand portfolios and have protectable intellectual property that can be enforced in the future. If on the other hand, the strategy is to operate on the bleeding edge of pop culture, a fast first to market strategy that doesn’t focus on the protection and enforcement of intellectual property rights will be the most likely strategy to follow.

It’s really the time-tested adage in play once again: An ounce of prevention – you know the rest.