Elster fought the refusal by the U.S. Patent and Trademark Office (USPTO) on the grounds that section 2(c) was unconstitutional. The Court disagreed, although they could not agree among themselves as to why. Observers of the case wondered if the Court might pull off a hat trick on the Lanham Act, after the prohibitions on registering “disparaging” and “immoral or scandalous” trademarks were struck down as unconstitutional. But the foregone conclusion of Elster may be best expressed by the concurring opinion of Justice Barrett: “A trademark that includes another living person’s name without her consent has the obvious potential to create source confusion.” If there is anything anathema to the purpose of trademark law, it is confusion.
In the wake of Elster, a campaign brand like “Haley Voters for Harris” has no chance of qualifying for registration, at least not without the unlikely receipt of written consents from both Nikki Haley and Kamala Harris. But registration is not required to establish trademark protection under federal or state law. Trademark rights derive first and foremost from use or, rather, use that creates consumer recognition of source identification. That leaves open an interesting question and possible strategies for political campaigns to consider, even if the obvious and foregone conclusion of Elster cemented the status quo of section 2(c).
Just Do It (It Being . . . )
Political campaigns exist in an unusual space when it comes to branding. On the one hand, a political campaign promoting a candidate or cause has the same basic interests as a business promoting a bottled beverage or a running shoe. Both want their consumers—whether they be donors, supporters, or paying customers—to recognize them by name as the source of their products. Both have a vested interest in avoiding confusion with their competitors. On the other hand, a political campaign is driven toward a fundamentally different purpose—that of advocating for a cause or a candidate. This purpose is often expressed by the branding itself where the brand is the product. In the typical business context, a brand that identifies the good or service may be considered generic, or at least highly descriptive, and therefore unsuitable as an enforceable trademark.
It is for this reason—the dual nature of many campaign brands as trademarks and aspirational rallying cries—that the USPTO frequently rejects applications to register these brands. The Trademark Manual of Examining Procedure (TMEP) has an entire section on the refusal of political expressions and other “[m]atter that merely conveys ordinary, familiar, or generally understood concepts or sentiments.” “Consumers understand such widely used, commonplace messages as conveying ‘the ordinary concept or sentiment normally associated with [the message], rather than serving any source-indicating function.’” Of course, registration is not required to have a trademark or establish trademark rights. The sine qua non of a trademark is (1) use with a good or service, and (2) the recognition of consumers as a source indicator. There is no reason that a campaign brand cannot meet those criteria in practice even if a formal trademark registration is disfavored by the USPTO or even—as in the case of a brand identifying a living individual without their consent—categorically prohibited.
Consider, for example, the political campaign Haley Voters for Harris, or HV4H. That campaign, so-named and organized by the political action committee Primary Pivot (a.k.a. PivotPAC), had a simple mission—to rally supporters of Nikki Haley’s failed campaign for the Republication nomination to shift their support to the Democratic nominee, Kamala Harris, ahead of the November 2024 election. The goal of the campaign was perfectly captured by its name: They were Haley Voters for Harris, and they wanted Haley voters to support Harris.
By comparison, consider Nike’s famous slogan “Just Do It.” The slogan is intentionally vague and malleable, such that, in the words of Nick DePaula of ESPN, “anybody could apply it to whatever it was they were trying to aspire to do.” And yet, the only “it” that Nike is really interested in consumers “just doing” is to just buy Nike products. Nike is a for-profit corporation, and its trademarks are above all else a means to that end.
Despite these differences, Haley Voters for Harris had a vested interest in protecting its name that was fundamentally similar to Nike’s interest in protecting its famous slogan. This was so not only because Haley Voters for Harris solicited donations and therefore had a commercial incentive akin to Nike’s profit motive; Haley Voters for Harris had to be on guard against the misuse of its name because such trademark infringement-esque conduct could have muddled or derailed the message. That kind of confusion could have done more than cost the campaign a donation or two. It could have defeated Haley Voters for Harris’s very purpose. Consider that a single parody tweet misattributed to Eli Lilly and Company and that announced “insulin is now free” was blamed for a one-day 4.37% drop in stock share price. The parody was quickly exposed and Eli Lilly recovered from the maelstrom, but a similar 24-hour news cycle of confusion could have caused untold chaos for the campaign in the days leading up to Election Day.
So, using Haley Voters for Harris as a case study, what are future campaigns to do? One thing we can say for certain is that they have no chance of getting a trademark registration for a campaign named after a living person without their consent. Vidal v. Elster answers that question definitively. However, the sad fate of “Trump Too Small” at the USPTO still leaves many open questions—as well as opportunities—when it comes to trademark enforcement strategies for political campaigns. Even those with unregistrable brands.
The Trifecta That Wasn’t
Vidal v. Elster is a curious case. In many respects, the best way to frame the Supreme Court decision is in the negative. No, the decision did not continue the trend set by Matal v. Tam and Iancu v. Brunetti of striking down controversial provisions of the Lanham Act restricting trademark registrations. No, the decision did not establish a clear test to assess the constitutionality of restrictions of speech under the First Amendment beyond this case—whether related to trademark registrations or otherwise. And no, the decision did not find that the phrase “Trump Too Small” cannot be used by Elster or perhaps even claimed as a trademark in connection with his T-shirts.
The last point may be the cause of the most confusion among mainstream media reports on the decision. Misleading headlines like “You Can’t Trademark ‘Trump Too Small,’ Supreme Court Rules” and “US Supreme Court Bars ‘Trump Too Small’ Trademark” immediately popped up after the decision dropped, to the consternation of trademark attorneys everywhere. The practical implications of Elster were much smaller than those misperceptions suggest.
In simplest terms, Elster upheld a noncontroversial provision of the Lanham Act that statutorily prohibits the registration of trademarks that feature a name “identifying a particular living individual except by his written consent.” The decision did not censor any criticism of Donald Trump or of any other living individual. It did not restrict Elster’s actual use of “Trump Too Small” in any way. As trademark cases go, it has nothing on Simon Tam’s noble battle to reclaim a racist slur by registering THE SLANTS for his band. As First Amendment cases go, New York Times Co. v. Sullivan it was not.
Much of the legal and academic discussion following Elster stepped right over the trademark issue to focus instead on the philosophical proxy wars taking place between the majority and concurring opinions. Some observed the tug-of-war between Justice Thomas’s “history and tradition” approach to constitutional analysis, on the one hand, and the skeptics represented by Justice Barrett’s “reasonableness” approach and Justice Sotomayor’s precedent-based “doctrinal framework,” on the other. Others looked for tea leaves from the philosophical fissures that might shed light on the Supreme Court’s approach to First Amendment jurisprudence in the future.
What those discussions leave by the curb are the practical implications of Elster for those who traffic in political- and social movement-based brands. By their very nature, campaigns that advocate for a particular candidate or cause have good reason to use the names of living individuals in their brands, their domain names, their social media handles, etc. Those individuals’ names often function as shorthand for a message, an ideology, or a political goal. A statutory prohibition on the registration of trademarks featuring those living individuals’ names is defensible (or so thought each of the nine justices for their own separate reasons). But the fact remains that such unregistrable names and phrases may still be used as—and indeed may function as—source indicators. That is, “Trump Too Small” and “Haley Voters for Harris” may effectively be trademarks in practice. They may even be enforceable as trademarks in certain situations and settings, if not necessarily in court.
Campaigns undoubtedly will continue to incorporate the names of living individuals in their brands, with or without those individuals’ permission. At times, consumers may even recognize those campaign brands as trademarks, and those brands will accumulate goodwill as a result. In other words, these unregistrable campaign brands will walk like a trademark, look like a trademark, and quack like a trademark.
Nikki Haley Versus Her Voters
The Haley Voters for Harris campaign began as Haley Voters for Biden. That campaign was launched by the political action committee PivotPAC, which began its life as a super PAC that “urged non-Republicans to cast primary votes for Nikki Haley.” The PAC pivoted to supporting Joe Biden once Haley dropped out of the Republican primaries in early March 2024. For whatever reason—perhaps lack of traction—the Haley Voters for Biden campaign only attracted the ire of its primary namesake once it morphed into Haley Voters for Harris on July 21, 2024. That was the same day that Biden withdrew from the race and endorsed his vice president to take his place on the Democratic ticket.
One tweet celebrating the turn of events proclaimed, “Nikki Haley’s Voters Pac just endorsed Kamala Harris!” Although the article linked to that tweet was careful to note that the campaign was “not affiliated with the Stand For America or Nikki Haley for President PACs,” and the campaign issued its own statement to clarify that it is “not the Nikki Haley affiliated PAC” and “never claimed to speak for Nikki Haley,” the new campaign brand and the attention it received triggered a cease and desist letter from lawyers for Nikki Haley for President, Inc. (NHFP). That letter made its way to the press, apparently even before it was received by the campaign.
In that letter, NHFP charged PivotPAC with a violation of 52 U.S.C. § 30102(e)(4), which—in language that echoes Elster and section 2(c) of the Lanham Act—prohibits the inclusion of a candidate’s name in a political action committee without the candidate’s authorization. NHFP also argued that the use of Haley’s name was “false and misleading” because it “misrepresent[ed] her position.” Lastly, NHFP threatened to report the campaign to “cybercrimes divisions” of the FBI and DOJ for “intentional misrepresentations to the public in violation of 18 U.S.C. § 1343,” which concerns wire fraud. Notably, while the allegations in the letter evoked the elements of trademark infringement, NHFP did not include an explicit trademark infringement claim against Haley Voters for Harris. The thrust of the letter was instead that the campaign would confuse the public with regard to Haley’s positions, not explicitly that consumers would assume that the campaign itself was affiliated with or endorsed by Haley.
The campaign responded with a press statement dated July 25, 2024, in which it noted the disclaimers on its website and called out NHFP for “fail[ing] to identify a single statement that misrepresents Ambassador Haley’s views.” The campaign argued that the federal election law cited in the cease and desist letter was inapplicable since PivotPAC (and not Haley Voters for Harris) was the committee name registered with the Federal Election Commission (FEC). The campaign nested its rights in the First Amendment, pledged that its speech would “not be silenced,” and declared its intent to “focus[] on the 4.4 million voters that voted for Ambassador Haley in the primaries.”
Haley continued her attack on the campaign, telling Fox News on September 12, 2024, that “[a]ny attempt to use my name to support her or her agenda is deceptive and wrong.” It appears, however, that NHFP decided not to pursue any further legal action against the campaign.
In addition, there is no indication that the Harris for President campaign took any issue with the campaign or its name.
The Obvious, the Potential, and the Categorical
That leads us back to where we began with Elster. As trademark attorneys jumped to clarify after the decision was released, “No, the Supreme Court Did Not Say That ‘Trump Too Small’ Is Not a Trademark.” The Supreme Court only said that the phrase “Trump Too Small” was categorically prohibited from registration. A registration from the USPTO confers certain legal rights to a trademark owner, but the USPTO neither creates nor cancels a trademark. In a tautological manner, a trademark is created by the use of a designation as a trademark. A registration validates that the designation qualifies as a trademark, but the lack of a registration does not prove the opposite. The Supreme Court “made no determinations of whether TRUMP TOO SMALL is a trademark or whether it can function as a trademark.” That question was not before the Court to consider.
Without registration, Elster remains free to use “Trump Too Small” on his products or anywhere else as an expression. He is also free to identify “Trump Too Small” as his trademark under common law (possibly even under state law, depending on the state). Without the sword or shield of a federal registration, however, we can only speculate whether “Trump Too Small” functions as a trademark. Perhaps Elster could do us the favor of bringing a trademark infringement action against a competitor, should he ever find the phrase put to use by others without his authorization.
The concurring opinion of Justice Barrett in Elster tangentially acknowledged this nuance between the Lanham Act’s restrictions on registration, on the one hand, and the actual function of a trademark, on the other. Justice Barrett defended the “categorical judgment[]” of Congress to deny registration in certain cases, regardless of whether the designation at issue was likely to cause confusion. That defense came in response to Elster’s argument that no one would reasonably believe that Trump had endorsed a product named after an insult lobbed at him by a political rival. The Federal Circuit had agreed with Elster in the underlying decision, observing that “[n]o plausible claim could be or has been made that the disputed mark suggests that President Trump has endorsed Elster’s product.” Justice Barrett hand-waived that argument away, writing that “[a] trademark that includes another living person’s name without her consent has the obvious potential to create source confusion.” But “obvious potential” for confusion is one thing—perhaps enough of a thing to justify a categorical prohibition—and actual confusion is another.
“Haley Voters for Harris” arguably offers a much stronger case than “Trump Too Small” that the brand poses no plausible risk of confusion as a trademark. Elster had argued that “Trump Too Small” would not confuse consumers because the phrase “invokes a memorable exchange between President Trump and [then rival] Senator Marco Rubio” during the 2016 primary debate. Thus, Elster’s argument hinged on whether consumers would recall a heated exchange between two candidates for the Republican nomination from eight years prior.
By comparison, the phrase “Haley Voters for Harris” expressly identifies a category of people who implicitly act without the consent of the identified individuals. First, it is quite common for political campaigns to identify a candidate (“[Supporter] for [Candidate]”) without any implication that the candidate has endorsed or coordinates with that campaign. Second, the peculiar phrasing “Haley Voters” implies that the voters in question broke ranks from Haley and her own campaign for the presidency. After all, if Haley herself had endorsed Harris, then the “Haley Voters for Harris” campaign would be presumably redundant and unnecessary.
In fact, the specificity of “Haley Voters for Harris” arguably supports the potential for the brand to function as a trademark. The Supreme Court referred often in Elster to the underlying purpose of the trademark system. As Justice Barrett observes, a trademark’s purpose is “source identification.” Justice Sotomayor likewise notes in her concurrence that a trademark’s purpose “is to identify and distinguish goods for the public.” In this regard, we can observe that when a news outlet such as Fox News reports on a campaign—even to note the controversy over its name—it uses the brand in the manner of a trademark: “A law firm representing Haley’s presidential campaign sent the Haley Voters for Harris PAC a letter . . . . Over 4.4 million people voted for Nikki Haley for president in the 2024 primary, according to the Haley Voters for Harris website.”
Whatever one might say about the categorical prohibition against the registration of “Haley Voters for Harris” or the potential for confusion, it seems obvious that the name functions as a trademark to identify a specific campaign as the source of a particular political message.
A Trademark by Any Other Name
So, if Haley Voters for Harris has trademark-like aspects, what does that mean for future campaigns? What good is a trademark if it is not enforceable on some level?
While we can only speculate, there is ample room for such speculation. Registration comes with benefits, of course, and the brass ring of trademark rights is enforceability against infringement in court, which can be an uphill battle for an unregistered mark. But registration isn’t everything, and a great deal of enforcement occurs outside of the court system.
For example, different social media and e-commerce platforms have different policies when it comes to takedowns. Twitter/X currently requires a trademark registration to submit an infringement claim, whereas Etsy allows a trademark owner to identify other legal bases for claiming trademark rights. Falling into a gray area of debatable wisdom, the Amazon Brand Registry accepts pending trademark applications as proof of ownership for enforcement against infringing products. This creates a kind of “back door” that can put questionable trademark claims on equal footing with registered trademarks and above even well-established but unregistered common law trademarks. With respect to domain names, the World Intellectual Property Organization (WIPO) will accept unregistered or common law trademark rights, if properly shown, in support of a Uniform Domain Name Dispute Resolution Policy (UDRP) complaint against a trademark-infringing URL.
In summary, the Supreme Court has slammed shut the door to registration for a political campaign brand such as Haley Voters for Harris. But the windows to trademark protection by other means remain open, if only by a crack in some cases. It may seem paradoxical that a brand can be both categorically unfit for registration and also describable in all other respects as a functioning trademark. That contradiction may be the inevitable byproduct of applying a legal mechanism designed first and foremost to support the profit motives of businesses to cause-motivated campaigns. If trademark law is ultimately an awkward fit for a political campaign, then the time may come for political campaigns to lobby for a new means of protection, one that reflects the differences between a campaign to sell shoes and a campaign to promote an ideal.
As a final observation, recall that the Haley Voters for Harris campaign also goes by the acronym HV4H. A convenient aspect of trademark law is that it typically does not concern itself with the origin of a trademark. The USPTO may conclude through investigation that consumers associate a word or phrase with a particular originator, but unlike copyright, authorship is rarely relevant to the registrability of a trademark. With that in mind, HV4H and similar future political campaign acronyms may function as a fully enforceable trademark and open the door to obtaining a registration for the campaign. The USPTO may still bristle and point to the public’s awareness of the acronym’s origin and association with the named candidates. But with the passage of time, how many consumers know that 3M stands for “the Minnesota Mining and Manufacturing Company,” that WD-40 stands for “Water Displacement, 40th formula,” or that Yahoo! stands for “Yet Another Hierarchically Officious Oracle”?
If the individuals behind that campaign decide to revive the campaign for some new purpose, then HV4H could have a second life as a registrable and fully enforceable trademark—in the words of a certain recent presidential candidate—“unburdened by what has been.”
