SEC Throws Penalty Flag on Bush Tailgate Koozies

By Will Gibbons

The so-called “SEC Primaries” on March 1, 2016 could have as much to do with deciding the Republican presidential nominee as the Southeastern Conference does with college football’s national championship. With that in mind, candidate Jeb Bush has toured the SEC this fall, and while he is undoubtedly watching great football, he is also pursuing votes.

Photo from usatoday.com
Photo from usatoday.com

As Bush canvasses the crowds across southern tailgates, which have included the University of Georgia and the University of Tennessee campuses, staffers have passed out koozies emblazoned with the letters “J-E-B,” in a circular logo similar to that of the SEC. That is until recently, when SEC officials called the logo into question.

The Conference’s position was simple—that it does not endorse candidates for public office (good business practice even in the right-leaning South), and because of that, Bush’s logo presented a trademark issue. While the Bush campaign maintained that its logo fell within the “fair use” trademark exception to trademark infringement, the SEC countered that because of the implied presidential endorsement, the logo fell out of bounds of the exception.

Fair use is often an issue in advertising, including in political campaigns. Fair use allows a party to use another’s trademark to refer to its own product or the product of the trademark holder. In this instance, the Bush campaign was using the SEC logo to refer to its own product, the koozies with J-E-B substituted. However, fair use cannot suggest an endorsement by the logo’s owner where it does not exist. Hence, the SEC made its feelings known and the Bush campaign has since changed the design.

Did the koozies really imply a Bush endorsement by the SEC, or was Bush simply endorsing SEC football to woo potential primary voters? The issue is debatable, but the lesson for all campaigns is to either proceed with caution or prepare for a reaction from trademark owners.

Leave a reply. Please note that although this blog may be helpful in informing clients and others who have an interest in information privacy and security, it is not intended to be legal advice. The information on this blog also should not be relied upon to form an attorney-client relationship.

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