Obama BBQ? Presidential names don't always provide coattails for businesses

Elliot Cook expected to have fun when he and co-workers took a colleague who was about to become a first-time dad out for a "last hurrah" in January at a tavern in Chicago's Roscoe Village neighborhood.

But instead of celebrating, Cook said, "people kept on talking about stuff we really didn't want to deal with" — namely the presidential election.

The experience led to a business idea: a deck of playing cards and an app that pose questions like "What's the most interesting thing about your grandmother?" and "Is a taco a sandwich?" — topics intended "to trump the conversation and lead it in another direction," said Cook, who, along with his two sisters and a friend, registered Trump the Conversation LLC in February with the Illinois secretary of state.

Branding inspired by presidents isn't a new phenomenon. Lincoln Financial Group's logo features a profile of Abraham Lincoln, whose son Robert gave permission in 1905 to Lincoln National Life Insurance Co., according to the Fortune 500 company's website.

But attention-seeking startups shouldn't assume they have the right to use a president's name just because he's leader of the free world, intellectual property experts say. Being elected president doesn't mean you lose control over the use of your name.

"Generally speaking, commercial use of someone's name requires consent, even if the person is a public figure," said Matt Topic, an intellectual property and media lawyer at Loevy & Loevy in Chicago. "Politicians often don't go to court over this, but that's not guaranteed."

Also not guaranteed: a bump in business from attempting to ride presidential coattails.

During and after the 2008 presidential campaign, when Barack Obama was elected the nation's first black president, about a dozen businesses were started in Obama's home state of Illinois with his last name as part of their monikers, state records show.

Few of the businesses sharing his name have had staying power — if they got off the ground at all — and several have been taken to court over unpaid bills and other issues. Among the businesses that came and went were a food mart, a planned barbecue restaurant, a hair salon, a pair of transportation firms and a tax service.

One that's still in business is Obama Energy, whose website says it supplies energy-efficient lighting. But the Chicago Heights company, which incorporated in 2011 and over the years has been ordered by courts to pay back more than $18,000 in unpaid rent and utilities, was sued last month in Cook County Circuit Court by Chicago lawyer Robert S. Held, who alleges the company owes him $117,000. Held said Thursday that Obama Energy "is considering a settlement proposal."

Obama Energy declined to comment on the lawsuits or its use of the Obama name.

Despite the various legal issues these companies have faced, their namesake hasn't taken them to court over the use of the Obama name, Cook County records show. However, Obama's re-election campaign filed a federal trademark infringement lawsuit in June 2012 against a website that was selling items using the campaign's "distinctive and famous" rising sun logo. DemStore.com agreed to stop using the logo.

The Obama family occasionally has fired a warning shot over businesses trying to capitalize on their names and likenesses. When Beanie Baby-maker Tyreleased a set of Sasha and Malia dolls in early 2009, Michelle Obama lashed out at the Westmont-based company for invading her daughters' privacy, and Ty quickly changed the dolls' names to Sydney and Mariah.

Kevin Lewis, a spokesman for Barack Obama's personal office, declined to comment on businesses incorporating with the Obama name.

While Obama doesn't have much of a reputation for going to court over the use of his name for commercial purposes, the same can't be said for President Donald Trump, whose business depends on the value of his name.

"Our current president has been quite litigious in his business dealings, so I would advise people to tread very carefully," Topic said.

Trump has been involved in 85 branding and trademark cases over the past three decades, 45 of them as a plaintiff, according to an ongoing analysis by USA Today.

In 1989, for example, Trump sued a family that operated Trump Travel & Tours, despite the agency having been in operation since 1985 and its name stemming from the original owners' love of card games. An out-of-court settlement required the owners to put disclaimers on signs and stationery — and now on the company's website — saying the agency isn't affiliated with Donald Trump, the New York Daily News reported.

Cook, of Trump the Conversation, stresses that the "Trump" in his company's name doesn't refer to the president, but rather to the verb "trump." Nor does Trump the Conversation, which expects to sell mostly through trumptheconversation.com, use the president's likeness, said Cook, 34, a university records analyst.

A business can't register a trademark with the U.S. Patent & Trademark Office using a living person's name without permission of that individual, said Richard Assmus, a Mayer Brown partner and intellectual property lawyer in Chicago. For example, Barack Obama gave written consent in August for his name to be registered by the Obama Foundation, which is building his South Side presidential center.

It isn't that people haven't tried for trademarks using a president's name. "Obama" shows up in about 190 trademark applications.

One was for a line of bumper sticks and signs with words "Be Obama's Legacy. Hope. Speak. Act." But its registration, a trademark examiner wrote in a filing, was "refused because the applied-for mark ... consists of or comprises a name (Obama) identifying a particular living individual (President Barack Obama) whose written consent to register the mark is not of record."

Trump has scores of trademarks with his name, not only as an individual with his own publicity rights but also for brands that are part of his business empire.

Potential problems can arise even when someone is using a name and not seeking to trademark it, with public figures retaining the ability to control the commercial use of their names, images and likenesses, even if it were just a line drawing with a hint of Trump's signature shock of hair.

"If you're using the Trump name in commercial fashion, you're possibly violating his right of publicity, to control commercial exploitation," Assmus said, though he added that "rights of publicity are rooted in state law and can vary state by state."

The play on words that Trump the Conversation uses is "trickier," Assmus said, and whether it receives a cease-and-desist letter from the Trump Organization could depend on how the cards are marketed.

"Clearly, 'trump' is an English-language word, and the use of the word is not taboo," he said.

Cook is willing to take his chances despite Trump's reputation for legal action.

"We've been careful to do everything that we can to avoid that outcome​, but if it does arise, we are master negotiators who make the best deals," Cook said. "Believe me."​

Sometimes it's public, not legal, pressure that businesses face.

Obama BBQ LLC registered the name in January 2009 with the Illinois secretary of state, but the company was involuntarily dissolved the following year. Daniel Eftimoff, agent and manager for Obama BBQ, said the business never got off the ground. An alderman gave him grief over his plans for a restaurant and was "nasty" with him because she felt he was misappropriating Obama's name to make money, he said.

"I voted for him," said Eftimoff, who has since moved out of state. "I was trying to honor him."

At least one company that took on the Obama name saw a pickup in business.

Obama's Hair Design was incorporated with the state in November 2008 — the same month Obama won the presidency — by the proprietor of what was then Ossama's hair salon on South Dearborn Street in the Loop. The salon saw a spike in business after the name change and garnered national media attention, including from conservative talk-show host Sean Hannity and NPR. But Strobeck Real Estate sued the business in 2010 over unpaid rent of more than $7,300, and that year the corporation was dissolved.

Owner Mahmoud Elsheikh said he's still in the hair business, but not with the Obama name. He couldn't be reached for additional comment.

byerak@chicagotribune.com

Twitter @beckyyerak

Copyright © 2018, CT Now
18°