About a week ago, stories began to surface about infighting between members of the Tea Party Movement over who own the rights to the trademark. Love them or hate them, the Tea Party’s existence has given us a unique opportunity to explore a little known and seldom discussed body of trademark law, the collective membership mark. A collective mark is a mark that is used by members of an association to show that the goods are provided by a member of that group and the goods meet its standards for admission. The collective mark is owned by the group but used by the members. Contrast with a collective membership mark which is not used in business or trade and does not indicate commercial origin of goods or services. Unlike a collective mark, neither the group nor its members uses the mark to identify or distinguish goods. The sole function of a collective membership mark is to indicate that the person displaying the mark is a member of the group.
Typical collective membership marks are unions or fraternal organizations- basically any group of people who gather together in and organized manner to justify being called a collective. I don’t know if this would include the Borg — I doubt it though, because enslaving populations is illegal and one can’t trademark anything illegal. At any rate, collective marks are discussed in the Trademark Manual of Examination Procedures (“TMEP”) §1304, Collective Membership Marks. Membership marks are not trademarks. Registration of these marks fills the needs of a non-commercial use of a mark by a group who wishes to prevent its use by others. A specimen for a collective mark or a collective membership mark must show use by a member, not the owner. Which kind of makes sense when you think about it.
In case you’ve been on Saturn for the past year, the Tea Party movement is a populist, conservative/libertarian political movement in the United States that emerged in 2007 through a series of locally and nationally coordinated protests. Most Tea Partiers consider themselves to be citizen activists who are part of a grassroots movement that is organized from the bottom up-small groups united under a shared ideology. The movement claims no national leader or figurehead. The Tea Party is not, by definition, a political party, and, given its nature, it’s hard to determine if it qualifies as an organization or association. The movement is notoriously anti-establishment and is a not a federally registered political party. However, the Tea Party is a state political party in Nevada, Connecticut, and Florida.
While Tea Partiers generally oppose federal government intervention, a U.S. judge has agreed to referee a dispute among Florida political activists that questions whether anyone has a trademark or any other intellectual property rights to the “Tea Party” name. Given their anti-establishment fervor, one might also be surprised to hear that a Tea Party group filed for federal registration of a trademark. But in April of this year, Marylynne Cellamare filed an application for TEA PARTY in the USPTO (serial number 85011226). The Examiner rejected the mark in an Office action a month later because the mark was merely descriptive. Ms. Cellamare has not responded. And there’s an application for TEA PARTY PATRIOTS (serial 77777712) that wasn’t flat out rejected, but the Examiner did require a disclaimer to “Tea Party”. The application is now before the TTAB in opposition proceedings. There are many more of these types of applications ranging from clothing to bumper stickers to political activism.
The Tea Party’s antiestablishmentarianism may be working against it. (Oh, how long I have waited to use that word in a sentence. Score!) The problem is that the Tea Party is more of a conglomerate of different groups of people based loosely around a set of common goals, and not a collective. This could be problematic in gaining trademark protection. How can one identify as a single source a group that admittedly has no leadership, no structure, and no organization? Is a common adherence to a general theory enough to qualify as a source? I don’t know, but this is not helpful to make the case that there is a unified association that can grant or deny permission, or claim ownership to the mark. Plus, avoiding confusion or even acquiring secondary meaning won’t be easy, either. How can one properly identify a unique source indicator when hundreds of groups use the same mark all over the country- especially if those groups use the mark to describe basically the same thing and are squabbling amongst themselves? I don’t know what’s behind this apparent disconnect (believe me, conspiracy theories abound), but it certainly isn’t helping anybody.
But what does all this have to do with a collective membership mark? From my viewpoint as a casual observer, it appears that a majority of the different groups of the Tea Party are united under a common theme, and are not too pleased with a single group trying to claim ownership. To me, it seems the Tea Party might want to consider easing up on the anti-establishment thing just a little. It makes sense to have at least some sort of structure to keep squabbles like this from coming up in the future. And given how applications for TEA PARTY are being examined, a collective membership mark might have been (and may still be) a place to start. It could even be the only option the movement has left at this point. If they can all just get on the same page.
Creating a single Tea Party group would certainly be no easy feat, but if the different groups could unify, the cooperation might give them just enough clout to seek protection to control the mark, and at the same time, save it from failing to operate as a source identifier. They are definitely going to have to stop fighting amongst themselves first, and I don’t know if that’s possible at this point. There are hundreds of different groups and agreeing to a leader or common owner would require them to depart from their grass-roots, very-definitely-not-part-of-the-status-quo mantra. They better find a way to do it quickly, though, because I’m not sure the widespread and unfettered use of the term can allow TEA PARTY function as a source indicator for anything beyond a set of principles at this point. I do think the descriptive/generic thing will be what drives the current issue. Will it be a flat out rejection or will a simple disclaimer suffice? I’m guessing disclaimer, but I can’t wait to see what Florida does with this.