The U.S. Trademark Office did what few do – the office told the Obamas “no”. The former First Couple is now aggressively demanding that no be turned into a yes.

You may remember the news not so long ago that the Obamas have now taken over Netflix with a fabulous agreement that their new production company will make movies and television series. Their production company is called Higher Ground Productions. Back in April, the Obamas wanted to trademark the name, and that is when the problems began for them. A woman named Hanisya Massey has a business called Higher Ground Enterprises, which helps authors publish e-books. Her trademark is in Class 41, which includes entertainment services. Her attorney says Massey has been using “Higher Ground” since 2008.

The Obamas original argument, provided in a letter from their attorney to the Trademark Office, is that no one is going to confuse the two businesses. The letter arrogantly implies it’s a distinction between a big, important entertainment deal with the former First Couple and a small business that promotes e-books.

“[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.”

Massey beat them to it by eleven years, it appears, and a trademark examiner agreed — at least for the moment. The denial of the Obamas’ appeal reasoned that there can be buyer confusion on the part of customers, and that the original owner of the name must prevail to protect both from any negative impact by a newcomer. In this case, the newcomer is Barack Obama and his wife.

Fast forward to August 20. The Obamas took the battle to the U.S. Patent & Trademark Office and demanded that the trademark for Higher Grounds Enterprises be canceled. The Obamas claim that Massey wasn’t using the trademarked name in 2016 when their production company was started. That prompted an angry riposte from Massey’s attorney, who calls the couple’s request for cancellation of her trademark “deplorable behavior”.

“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.”

So much for the expression made famous by Michelle Obama, “When they go low, we go high.”

Higher Ground Productions has announced seven projects so far. Frankly, this smacks of incompetence, certainly of the couple’s legal team as this mega-deal with Netflix was put together. On something as basic as a company’s name, due diligence should have been done in the very beginning of the venture by running a check on the name. How could they not know that a very similar name was already trademarked? My guess is that a lawyer did do the proper research, found a similar name, and the Obamas simply thought they would get the trademark anyway. Because it’s the Obamas. They didn’t consider that a refusal would come their way.

Ms. Massey has a David and Goliath situation going on here. This isn’t Barack Obama’s first trademark kerfuffle. Back in 2008, his presidential campaign trademarked his logo – ” the “O” with red and white striped fields below a rising sun made of the open center space.” A similar logo was trademarked for the 2012 campaign. A website began selling merchandise with the logo without permission from the campaign. A judge issued a preliminary injunction at the request of the campaign. The reason given was that supporters would be confused and think they were buying merchandise from the campaign, not an independent vendor. A permanent injunction was later issued and the vendor took the merchandise with the logo off its website.

Obama seeks higher ground. Literally. Frankly, I think "Higher Goings Productions" would be just as fine. It's free.

— Eriq Gardner (@eriqgardner) September 3, 2019