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“When they go low, we go high,” said Michelle Obama at the 2016 Democratic National Convention.
Going high evidently includes a trademark fight.
On Aug. 20, Barack and Michelle Obama’s Higher Ground Productions made a move to save its name. That day, the company went to the U.S. Patent & Trademark Office and demanded cancellation of someone else’s earlier trademark registration for “Higher Ground Enterprises.”
Higher Ground Enterprises is run by Hanisya Massey, who, according to her attorney Larry Zerner, is in the business of helping authors publish e-books. Her trademark is in Class 41, which includes entertainment services. Zerner says Massey has been using “Higher Ground” since 2008.
Naturally, as the Obamas came to a lucrative agreement with Netflix for films and television series, Higher Ground Productions came into conflict with Higher Ground Enterprises.
On April 10, a Trademark Examiner refused to register the Obamas’ claimed mark with a nod to the one held by Massey.
The Obamas, who are fans of Stevie Wonder (whose “Higher Ground” was a chart-topper in 1973) argued the two marks could co-exist in the marketplace.
“[T]he consumers of ‘media production services’ covered by the Application are likely to be highly sophisticated,” stated a letter on behalf of the Obamas’ production company to the Trademark Office. “Media production services are generally offered not to individual consumers but to commercial entities and professionals in their field. Indeed, Applicant has entered a deal with Netflix in connection with its media production services. Such customers, whether multi-billion-dollar media companies or smaller commercial entities in need of media production services, will exercise the height of care in selecting a media production company and are highly unlikely to be confused by a photographer or e-book publisher — particularly when the other party uses a distinguishable mark.”
That argument didn’t convince the U.S. Trademark Office, which saw “Higher Ground Productions” and “Higher Ground Enterprises” as too similar sounding, too related in services being offered, and advised, “The overriding concern is not only to prevent buyer confusion as to the source of the goods and/or services, but to protect the registrant from adverse commercial impact due to use of a similar mark by a newcomer.”
That newcomer — former President Obama — isn’t giving up.
In a petition to cancel, the Obamas essentially allege that Massey doesn’t deserve a trademark because “Higher Ground Enterprises” wasn’t actually in use at the time of its 2016 registration. (An online search turns up some early incorporation filings, though the digital trail at least seems thin.)
Zerner says he’s outraged.
“The Obamas have known for almost a year that their Higher Ground trademark application was rejected by the USPTO because it infringed my client’s rights,” says Zerner. “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. 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.”
Obama’s team declined to comment.
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