Is the President Liable for Trademark Infringement?

A Kentucky company recently filed a lawsuit alleging that the Obama Administration is liable for trademark infringement. The dispute centers on the Department of Treasury’s planned launch of a government-sponsored retirement savings program called “myRA.”

As detailed in court documents, My Retirement Account Services LLC currently operates a website, GetMyRA.com, and has registered the corresponding trademark. The company maintains that the name of the President’s retirement program is confusingly similar to its mark, citing the U.S. Patent and Trademark Office’s recent denial of the government’s application to register “myRA.”

The complaint specifically alleges, “Plaintiff’s customers and the public are likely to be, and have been, deceived and confused as to the source.” Accordingly, the company is seeking a permanent injunction in addition to monetary damages.

Determining the Likelihood of Confusion

In order to bring a successful trademark infringement suit, My Retirement Account Services LLC must demonstrate that the Treasury’s use of “myRA” has created a likelihood of confusion about the origin of its services. Factors that the court will consider include:

• The strength of the trademark;
• The similarity of the marks;
• The proximity of the products and their competitiveness with one another;
• The evidence that the senior user may “bridge the gap” by developing a product for sale in the market of the alleged infringer’s product;
• The evidence of actual consumer confusion;
• The evidence that the imitative mark was adopted in bad faith;
• The respective quality of the products; and
• The sophistication of consumers in the relevant market.

In support of its allegations, the company reports a steep drop off in traffic to its website. It further maintains that the government’s “myRA” mark has resulted in the “nullification of Plaintiff’s ability to promote its services using its MYRA Marks and the loss of potential customers who cannot find Plaintiff’s individual retirement account services at all or who may find the Defendant’s competing product an acceptable alternative.”

As this case highlights, intellectual property rights can have a direct impact on a company’s operations. If you have any questions about this case or would like to discuss this topic, please contact me or the Scarinci Hollenbeck Intellectual Property and Technology attorney with whom you work.