Intellectual Property Law

Trademark Principles Not Appropriate in Determining "Voter Confusion"

By Michael Atkins

On Jan. 11, the Western District took its final step in deciding whether the state’s new primary election system established by voter initiative I-872 is unconstitutional. Under the system, elections for partisan office start with a primary in which every candidate declares his or her party preference or independent status. Voters may select any candidate on the ballot, regardless of party preference, and the two candidates who receive the most votes, also regardless of party preference, advance to the general election. Thus, the general election becomes a runoff between the top two vote-getters in the primary. 

In 2005, the Washington State Republican Party filed suit to enjoin I-872’s implementation. The Washington State Democratic Central Committee and Libertarian Party of Washington State intervened. After trips to the Ninth Circuit and Washington Supreme Court, the political parties amended their complaints to allege that I-872 is unconstitutional because it creates “voter confusion” that unconstitutionally infringes on their First Amendment associational freedoms.

Now, this is a trademark law blog, not an election law blog, so here’s why it’s of interest to trademark-oriented folks. The political parties argued the court should apply Lanham Act likelihood of confusion principles in determining the existence of voter confusion.

However, Western District Judge John Coughenour found trademark analysis was not helpful.

He wrote: the court “declines the political parties’ invitation to review the possibility for voter confusion under traditional trademark analysis. Quite simply, trademark law does not lie in the First Amendment associational rights implicated in this matter. Trademark law is designed to protect the proprietary rights of private parties from improper commercial uses. This case does not involve the propriety rights of the political parties or Washington’s commercial use of any trademark. The comparison is inapposite.”

The court also noted it previously concluded “the State’s expression of candidates’ party preference on the ballot and in the voter pamphlets may not form the basis of a federal or state trademark violation.”

(Not that it’s significant to trademark practitioners, but the court concluded that “Washington’s implementation of I-872 with respect to partisan offices is constitutional because the ballot and accompanying information concisely and clearly explain that a candidate’s political-party preference does not imply that the candidate is nominated or endorsed by the party or that the party approves of or associates with that candidate. These instructions — along with voters’ ability to understand campaign issues and the fact that the voters themselves approved the new election system through the initiative process — eliminate the possibility of widespread voter confusion and with it the threat to the First Amendment.”)

The case cite is Washington Republican Party v. Washington State Grange, 2011 WL 92032, No. 05-927 (W.D. Wash. Jan. 11, 2011) (Coughenour, J.).

Full post as published by Seattle Trademark Lawyer on January 23, 2011 (boomark / email).