Trademark Law Pays Its Respects: The Names of Deceased Presidents Are Protected from Being Used as Trademarks, Sometimes Long after Death

Article excerpt

President Reagan, who was protected in life by Secret Service agents, is now, after death, being protected from trademark infringement in ways that common citizens of the United States will never be.

Tucked deep within the many paragraphs of the trademark laws of our country is a provision that continues to protect Ronald Reagan's name from being used as a trademark, possibly for decades after his death. This protection is not afforded to common citizens of the United States. It is not provided to sports or movie stars, military heroes or the justices of the Supreme Court. It may not seem fair, but the 40th president and one-time movie star gets preferential treatment.

In the United States, all people are protected from having their names turned into trademarks during their lives. It is considered a personal right of publicity, codified in the federal trademark laws passed in 1946. Michael Jordan, Martha Stewart and the Olsen twins have all relied on this part of the law to protect their rights. Without this law, anyone could take the names of these celebrities, slap them on products and make some quick money. Many public figures have made millions by carefully exploiting and controlling the rights to their names as trademarks.

However, this personal right expires upon the death of the person. That is the nature of a personal right. So, during her life, Condoleezza Rice can stop someone from using her name as a trademark, but after her death, we may see Condoleezza Ricecakes on store shelves. There is little her family could do about this under the trademark law, unless Rice becomes president before she passes away. Dead presidents get more protection from this name hijacking than all others. Even the National Security Advisor is not safe from being turned into the BETTY CROCKER of politics within days of her death.

After the death of a president, his name cannot be used as a trademark during the life of his widow, unless the widow provides her consent. This little-known and rarely used part of the law seems anachronistic even beyond the 1940s gender specificity that provides only for male presidents and their female widows.

Imagine Congress, circa 1945, discussing this part of the law. In a less cynical time, the respected name of the president might have been considered a valuable commodity. While a president could protect himself from the undignified experience of finding his name on product packaging during his lifetime, Congress must have wondered how to protect the public from similar humiliation in the days after the death of a president. The challenge to drafting the law would be determining how long after death the presidential name should be protected from trademark "squatters."

It would have been an unreasonable restraint on trade to prevent all future use of a president's name as a trademark. This would keep the inevitable John Tylers, Andrew Johnsons and Chester Arthurs from legitimately using their own names on their own products. …