Perhaps one of the most common criticisms of our legal system is the inescapable truism (at least in the context of large scale litigation) that the side with the most money will nearly always win. Being “right” is subordinated to being rich.
While this Darwinian imperative of the resource-rich conquering the resource-poor may seem inevitable, there is something uniquely distasteful about its manifestation when the conqueror has built a legacy on fighting for the underdog.
On August 20, 2019, one of the Obamas’ business entities, Higher Ground Productions LLC, unleashed the formidable (and pricey) Perkins Coie LLP law firm to cancel the Higher Ground Enterprises trademark owned by a woman named Hanisya Massey.
Hanisya is a small business owner who launched her company around 10 years ago with the purpose of training individuals on the basics of computer use. Her business and service offerings have expanded over the last decade and in 2017, she registered a trademark, Higher Ground Enterprises, in the USPTO in International Class 041 for the goods/services, “Photography; Publishing of books, e-books, audio books, music and illustrations.”
Under trademark law, her registration of Higher Ground Enterprises precludes others from registering a sufficiently similar trademark in conjunction with sufficiently similar goods/services.
On May 21, 2018, the Obamas’ production company, Higher Ground Productions LLC, applied for the trademark “Higher Ground Productions” in the USPTO, also in international Class 041 but for the goods/services, “Media production services, namely video and film production.” Their trademark application was rejected by the USPTO due to Hanisya Massey’s existing application.
Ultimately, after failing to reach a settlement with her (either for the sale of her trademark or perhaps for concurrent use rights), the Obamas filed a trademark cancellation proceeding against Massey’s trademark.
Fundamentally, trademark cancellation proceedings are filed by plaintiffs with the express purpose of nullifying the trademark holder’s rights to the trademark. If the plaintiff wins, the trademark holder suddenly loses all rights to the mark, which can have massively detrimental and life altering repercussions for the victim-company. In Massey’s case, she would need to stop using her company name, which she has worked hard to build and market over the course of the last ten years.
The attorney representing Massey’s company, Higher Ground Enterprises, is on record as saying, “This is really deplorable behavior. I hope that the Obamas realize that these actions are not consistent with the values they preach and that they instruct their attorneys to immediately dismiss the petition… Instead of simply picking another name, the Obamas' lawyers have now filed a meritless petition to cancel my client's trademark so they can take it for themselves.”
The Obamas’ central argument in the trademark cancellation proceeding is that Massey is not actually using the trademark in conjunction with the goods/services listed in her trademark application and she should therefore no longer be granted the rights to the trademark. If Massey is in fact stripped of the Higher Ground Enterprises trademark, the Obamas will with near certainty be able to register their desired trademark, Higher Ground Productions.
What is so controversial and surprising about the Obamas’ decision to wield the trademark cancellation proceeding like a government-swung cudgel, is that such an aggressive maneuver is incongruent with the Obamas’ (publicly fronted) ethos of empathy and compassion for the little guy (or in this case, gal).
Trademark cancellation proceedings are extraordinarily expensive, easily costing in the tens of thousands of dollars to fully prosecute. Once the plaintiff has initiated a trademark cancellation proceeding, the defendant must respond or risk losing the case and her rights to the mark.
Of course, individuals who find themselves in the unlucky position of being targeted by a predatory plaintiff very often cannot afford to go through the trademark litigation process and are never given the opportunity to defend themselves. Indeed, merely filing the cancellation proceeding is very often tantamount to winning. What sort of chance does Ms. Massey really have in battling the supremely wealthy, former President of the United States?
Do the Obamas have the right to attempt to cancel Ms. Massey’s trademark? Absolutely. Do they look like bullies for doing so? You bet.
Abe Cohn is an attorney at Cohn Legal, PLLC, a law firm designed specifically to provide a boutique experience for entrepreneurs. Abe’s area of expertise is intellectual property and startup law. On judicial interpretation, Abe is a firm believer that constitutional originalism is the only viable and indeed sustainable judicial philosophy by which the courts may approach the interpretation of legal texts. Abe’s views on matters of the law are fundamentally rooted in his orientation towards a civil-libertarian approach to the role of government vis-a-vis individual freedoms. To read more of his reports — Click Here Now.
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