Legal Remedies for Promotional Use of the President's Name ( 1977 )

May 3, 1977
78-79 MEMORANDUM OPINION FOR THE COUNSEL
TO THE PRESIDENT
Promotional Use of the President’s Name
(15 U.S.C. § 1051, 15 U.S.C. § 45)
This is in response to your memorandum o f March 8, 1977, requesting our
advice as to possible legal remedies for promotional use o f the President’s name
or likeness. From the letters enclosed, it appears that you are concerned with
persons who seek to identify the President with a particular commercial product
for promotional reasons, including trademark registration, and not with the
vendors of pictorial material. The scope of this memorandum is accordingly
limited to remedies for appropriation o f the President’s name for advertising or
promotional purposes.
No Federal law restricts the use o f the President’s name or likeness as such.
Except for the law governing the registration of trademarks, limits on the
commercial appropriation o f an individual’s name are primarily a matter of
State law.
1. Federal registration o f trademarks is governed by 15 U .S.C . § 1051 et
seq. Section 1052 provides that:
No trade-mark . . . shall be refused registration on the principal
register on account of its nature unless it—
(a) Consists o f or comprises . . . m atter which may dispar­
age or falsely suggest a connection with persons, living or
dead, institutions, beliefs, or national symbols, or bring
them into contem pt, or disrepute.
(c) Consists o f or comprises a name, portrait, or signature
identifying a particular living individual except by his
written consent . . . .
The Patent Office may apply this section and refuse registration on its own
motion. E .g ., A pplication o f Continental Baking C o ., 390 F. (2d) 747 (CCPA
1968). In addition, any person damaged by registration may object within 30
days of the publication of the proposed mark in the Official Gazette of the Patent
356
Office. 15 U .S.C . § 1063. A registration that violates 15 U .S.C . § 1052(a) or
(c) may be cancelled at any time on petition of a person who is damaged by its
use. 15 U .S.C . § 1064(c). Findings of fact by the Patent Office on these issues
are controlling unless overcome on judicial review by evidence “ which in
character and amount carries thorough conviction.” Redken L a b o ra to ries, Inc.
v. Clairol, Inc., 501 F. (2d) 1403 (9th Cir. 1974). Resort to the trademark law
is therefore available for the purpose of preventing or cancelling the registration
of trademarks using the President’s name or likeness.
2. The Federal Trade Commission, (the Commission) may have the power
to prevent the commercial use o f the President’s name in some circumstances.
Section 5 of the Federal Trade Commission Act, as amended, 15 U .S.C . § 45
(Supp. V 1975), authorizes the Commission to prevent “ unfair and deceptive
practices” in commerce, and it is well settled that this includes the power to
prohibit deceptive or misleading advertisem ents.1 An advertisement is consid­
ered misleading if it creates a false impression of the source of the product or it
implies a nonexistent endorsem ent.2 Furthermore, the Commission considers
the effect of the entire advertisement on the buying public as a whole, including
“ the ignorant, the unthinking and the credulous,” in determining whether it is
misleading.3 The Commission may find the total effect misleading, because
incomplete or out of context, even if any statement made is literally true.4
Under these principles, the Commission could probably prohibit the use of
advertisements, labels, or trade names which implied that the President
endorsed, profited from, or was connected with the sale of a particular product.
The breadth of the test for misleading effect, coupled with the prestige o f the
Presidency and President C arter’s well-known background, would probably
allow the Commission to eliminate most of the attempts to attach the
President’s name to peanuts and peanut products.5
3. The States provide various additional remedies for unconsented use of an
individual’s name or likeness in advertising. The expansion of the First
Amendment to limit State power to protect the privacy of public figures and to
regulate commercial advertising do not appear to affect State power to prevent
'E .g., Resort Car Rental System, Inc. v. FTC. 518 F. (2d) 962 (9th Cir. 1975); FTC v. Sterling
Drug, Inc.. 317 F. (2d) 669 (2d Cir. 1963); Aronberg v. FTC. 132 F. (2d) 165 (7th Cir. 1942). See
generally. FTC v. Colgate-Palmolive Co.. 380 U .S. 374 (1965).
2FTC v. Roval Milling Co.. 288 U .S . 212., 216-217 (1933); Niresk Industries. Inc. v. FTC. 278
F. (2d) 337, 341 (7th C ir.); Howe v. FTC. 148 F_ (2d) 561 (9th Cir. 1945).
}Aronberg v. FTC. 132 F. (2d) 165, 167 (7th Cir. 1942).
*FTC v. Sterling Drug. Inc.. 317.F. (2d) 669. 674-75 (2d Cir. 1963); P. LorillardCo. v. FTC.
186 F. (2d) 52. 58 (4th Cir. 1950).
5It should be noted that the FTC has exclusive jurisdiction to enforce the Act. AlfredDunhill Ltd.
V. Interstate Cigar Co., Inc.. 499 F. (2d) 232 (2d Cir. 1974); Holloway v. Bristol-Myers Corp.,
485 F. (2d) 986 (D .C . Cir. 1973); Carlson v. Coca-Cola Co.. 483 F. (2d) 279 (9th Cir. 1973).
357
the unconsented appropriation o f an individual’s name for advertising
purposes.6
John M . H arm on
Acting A ssistan t A ttorney G eneral
Office o f L egal Counsel
6T he First A m endm ent protects the publication o f inform ation about public figures against State
defam ation or privacy law unless the publication was m ade with actual knowledge o f or reckless
indifference to its falsehood. Time, Inc. v. Hill. 385 U .S. 374 (1967); New York Times Co. v.
Sullivan. 376 U .S. 254 (1964). Last term , the Suprem e Court held that the First Am endm ent also
protects the right to publish and to receive truthful com m ercial advertising o f lawful activities.
Virginia State Board o f Pharmacy v. Virginia Citizens Consumer Council. Inc., 425 U .S . 748,
769-70, 773 (1976). See also, Bigelow v. Virginia, 421 U .S. 809, 825-26 (1975). The Court was
careful to state, how ever, that it saw no obstacle in its opinion to the regulations of deceptive or
m isleading advertising. Id. at 771-72. See also 425 U .S . at 775-81 (Stew art, J ., concurring).
358