You Don’t Have to Be a Brain Surgeon to Understand How Silly Ben Carson’s Legal Threats Are

You would probably assume that Ben Carson and his presidential campaign would be thrilled that so many people across America are creating T-shirts, mugs and other items touting his candidacy for the presidency, saying “Ben Carson for President 2016" or using more creative slogans, plastering his face on such items. And you would think that his campaign has better ways to spend its money than hiring a pseudo-IP law specialist to threaten people who are offering such items.

But if you entertained such thoughts, you would be wrong. Last Thursday, one K. Clyde Vanel, whose law firm’s web site portrays him an IP law expert, sent a demand to CafePress, claiming that the items that come up on a search of CafePress’s web site using the search string "Ben Carson gifts" constituted “trademark infringement, copyright infringement, misappropriation of name and likeness, privacy rights infringement.” He went on to tell CaféPress, “The aforementioned action is a violation of the Digital Millennium Copyright Act, The Lanham Act, Federal Trademark Infringement, Federal Copyright Infringement, state misappropriation and privacy laws.” And he concluded with a demand, in all capital letters, that all “unauthorized Ben Carson for President products” be removed from the CafePress site.

But the legal claims are those of a buffoon. Supporting Ben Carson’s candidacy invades his privacy? The phrase “Ben Carson for President” is copyrightable? Nobody else can utter those words lest they infringe his trademark or violate his right of publicity?

This sort of IP silliness comes up in every presidential campaign, it seems. This season, we have already had to deal with a threat by the “Ready for Hillary” organization threatening a T-shirt seller who had the temerity to create shirts adapting the group's stylized logo but changing the wording to “Ready for Oligarchy,” referring to the then-assumption that the race would be fought in November 2016 between Hillary Clinton and Jeb Bush. We stepped up to defend the parodist, and CafePress, which had initially taken the shirts down in response to a demand letter, promptly agreed to restore them. The pro-Clinton PAC met our three-day deadline to retract or get sued for a declaratory judgment of non-infringement.

None of the CafePress items use the logo form that the Carson campaign has adopted, and has applied to register as a trademark.  If that logo were used, we would at least have some issues worth consideration.  But here, we just have mindless bullying that strikes me as counterproductive even apart from the Streisand Effect.

Last night I sent a reply to the lawyer who signed his name to Carson’s nonsense. I hope he will have the good sense to follow Ready for Hillary's example.