Seattle Trademark Lawyer

The Associated Press yesterday reported on oral argument before the U.S. Supreme Court in a case that challenges Washington State’s primary system. Currently, voters here must pick a party and then vote for candidates within that party. A new law would replace that scheme, allowing voters to select their favorite candidates regardless of party affiliation. Litigation has prevented the law from taking effect.

The AP stated that “Chief Justice John Roberts compared the case to a trademark dispute. The two major parties are trying to protect their ‘brand’ to ensure that only those who agree with the party’s principles are identified with that party, he said.

“Under the law as approved, ‘people will be confused,’ Roberts said. Candidates might ‘look like Republicans but aren’t.’”

That’s an interesting take. To the extent voters look at Candidate X, see she’s a Democrat, and have an accurate picture as to where that candidate is coming from, I suppose he’s got a point. But do political parties really serve as an identifier of source? Enough that allowing voters to cross party lines in primary elections would dilute the strength of each party’s “brand”? To be sure, similarities exist between using party affiliation to “brand” a candidate and using a trademark to brand a good. For one, both convey more information about the product (be it a candidate or a car) than the product standing alone. But does the Republican party “manufacture” candidates the same way Toyota manufactures cars? I don’t think so. While voters may have an idea what it means for a candidate to be a Democrat or a Republican, that idea (at least for me) is a lot fuzzier than what it means for a car to be a Toyota or a Honda.

The consolidated cases at issue are Washington State Grange v. Washington State Republican Party, No. 06-713, and State of Washington v. Washington State Republican Party, No. 06-730.