Yes We Can: Obama Campaign Sued for Trademark Infringement by National Canning Center

Alex Toy
October 27, 2008

This AP Newswire article reports that the National Center for Home Food Preservation and Canning is suing the Obama campaign for using its trademarked slogan, “Yes, We Can.”  Although a former president of the DC trade association claims that the “slogan is known all over the country for just one thing: Canning,” this case presents the issue of reverse confusion because Obama’s junior use of the slogan is probably known nationwide, while most people probably have not even heard of the senior user’s existence.

In evaluating a reverse confusion case, a court may consider: 1) the strength of the junior user’s mark, 2) the intent of the junior user, and 3) the presence of a house mark.  First, because of Obama’s ubiquitous campaign ads and the non-stop political media coverage, a survey would likely show that the mark is very strong in connection with Obama.  However, the respective services of canning and politics are so different that consumers are unlikely to confuse the sources of the slogan when in context.  See Harlem Wizards.  Second, it is highly doubtful that the Obama campaign intended to take advantage of any goodwill of the senior user because it was probably unaware of the trade association and because any possible goodwill would be de minimis and have nothing to do with politics.  Third, Obama’s well-known name used (in writing or orally) in connection with the slogan could serve as the equivalent of a house mark that would distinguish Obama’s use from the trade association’s use.  See Vitarroz.  A possible settlement could require Obama to always provide his name in connection with the slogan to distinguish his use.

Finally, it is unlikely that the trade association would suffer any significant harm from Obama’s use because consumers would not think that the trade association (as the senior user) was trying to capitalize on Obama’s goodwill because the canning industry and politics are completely unrelated.  In addition, Obama uses the slogan in an inspirational sense, while the trade association uses it in a literal sense as a play on words.  Therefore, a court should dismiss the suit against Obama’s campaign or, at most, require the campaign to always explicitly use the slogan in connection with Obama’s name.

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