court rejects politician's slogan claim

Cloobeck v. Villaraigosa, No. 2:25–cv–03790–AB (SK) (C.D.Cal. Dec. 8, 2025)

Cloobeck, a 2026 California gubernatorial election candidate,alleged infringement of the phrase “PROVEN PROBLEM SOLVER” by competingcandidate Villaraigosa. Cloobeck used “I AM A PROVEN PROBLEM SOLVER” inconnection with his gubernatorial campaign since March 2024; he applied toregister it in late 2024. Villaraigosa later began using the phrase “PROVENPROBLEM SOLVER” in connection with his campaign.

Obviously this is a bad claim. The difficulty is thattrademark has extended far beyond protecting source indication, but sourceindication is the only thing that really involves a substantial governmentinterest in suppressing political speech. We could say that the Lanham Act isonly constitutional as applied to political speech when it addresses sourceidentification, and not other kinds of (immaterial) confusion, but courtsgenerally don’t want to do that and therefore end up having to make somewhatless convincing distinctions.

First, the court says, the Lanham Act governs commercialspeech, not “purely political” expression. What about United We Stand Am., Inc.v. United We Stand, Am. New York, Inc., 128 F.3d 86 (2d Cir. 1997) (not fornothing, endorsed by the Supreme Court in JDI)? First, it’s not bindingin the Ninth Circuit. Second,

the defendant was a politicalorganization operating as an entity that provided membership, politicaladvocacy, and fundraising services to the public. By contrast, hereVillaraigosa is merely an individual gubernatorial candidate—he is not runninga political organization engaged in offering “services characteristicallyrendered by a political party to and for its members, adherents, andcandidates.” In addition, in United We Stand, the court emphasized that thedefendant’s use of the mark was tied to soliciting contributions, memberships,and event participation, activities with clear commercial characteristics underthe Commerce Clause.

Here, however, Villaraigosa’s useof “PROVEN PROBLEM SOLVER” occurs in the course of political messaging,debates, and campaign communications—not the sale or advertisement of goods orservices.

I tend to think this distinction is unpersuasive even though I accept the result in United We Stand. [Sidenote: United We Stand was a default judgment, and so the facts are particularly unhelpful—I’m trying totrack down some images if they're available.]

Political messaging and campaign communications alsoroutinely involve soliciting contributions, event participation, and evenmemberships (donor’s circles!). They’re two different ways of saying the samething. Please note the “contribute” button on these screenshots fromdefendant’s website, included in plaintiff’s complaint:

Which is to say, individual candidates promote services/participatein commerce just as much as political parties. However, the role of a namecompared to that of a slogan can provide a meaningful difference: a name tellsyou who is speaking in a much more direct and unambiguous way than a slogan. Itis a core source-identifier, where the interest in avoiding confusion is at itshighest.

The court here also distinguishes other political speechcases like Browne v. McCain, 611 F. Supp. 2d 1073 (C.D. Cal. 2009),which applied the Lanham Act to unauthorized use of a musical work in politicaladvertising as a sponsorship/approval case. The court said that the use of“PROVEN PROBLEM SOLVER” here “does not implicate confusion over the origin orsponsorship of goods or services, but rather falls within the heartland of corepolitical expression. Accordingly, while Browne recognized that theLanham Act may extend to certain political activities when there is asignificant risk of confusion, this Court is unconvinced the Lanham Act isapplicable to the political circumstances at bar.”

OK, but (1) if the issue is lack of confusion, no specialtreatment for political speech is required; (2) if the issue is that politicalspeech requires us to tolerate more risk of confusion, that should be saidoutright; (3) if the factual claim is that this kind of political speech isjust inherently less likely to cause confusion than two nearly identicalpolitical party names or the use of famous songs by famous entertainers, thenthat should also be said outright. To be clear, I think both (2) and (3) arecorrect and also more helpful than just saying “these are differentsituations,” because knowing why they’re different is useful. Why couldn’t onepolitician endorse another? Brad Lander and Zohran Mamdani cross-endorsed in their primary—andalthough if you’re reading this, you probably understand why that’s different,most Americans have only a vague understanding of ranked-choice voting.

The court thought this case was more like Think Rubix, LLCv. Be Woke. Vote, No. 2:21-CV-00559-KJM-AC, 2022 WL 1750969 (E.D. Cal. May 31,2022), where the slogan “Be Woke. Vote” slogan was “inherently intertwined”with social and political advocacy and therefore noncommercial under the LanhamAct. “Both Think Rubix and the present case involve political and civicengagement campaigns that use short punchy phrases as part of their politicalmessaging. In each, the marks’ purpose is to inspire individuals to vote, notto identify or promote a commercial product or service.” “PROVEN PROBLEMSOLVER” was also used in campaign materials and messaging to persuade voters, “notto engage in commercial trade.”

[Political fundraising is apparently “commercial trade,”though, at least when a party does it—this is not as good of a dividing line as“name” for purposes of protecting political speech.] “Villaraigosa is notselling goods or services or participating in the marketplace—he is seekingvotes from the public for his 2026 California gubernatorial campaign.” [We’vejust stuffed the relevant considerations into the definition of “participatingin the marketplace,” though—was the McCain campaign “participating in themarketplace” when it ran its allegedly infringing ad? If so, how was it doingso differently than defendant here? Are political endorsements a relevant“market”?]

Even if the Lanham Act did apply, there was no plausiblerisk of confusion.

Voters understand that Cloobeck andVillaraigosa are two distinct individuals and political candidates—they areopponents in a high-profile gubernatorial election. They have separate anddistinct campaign websites, social media accounts, and both engage with thepublic widely and separately through campaign speeches and messaging. Noreasonable person would believe Cloobeck and Villaraigosa are affiliated simplybecause both use a descriptive phrase commonly used by political candidates fortheir campaigns. Moreover, the [complaint] contains no allegations ofmisdirected donations, mistaken identity, or any other indica of confusion.

“PROVEN PROBLEM SOLVER” was also generic for a desirablepolitical trait, not a source identifier. “When voters consider candidates forpublic office, they naturally seek individuals who can solve the problems oftheir communities.” Numerous politicians have used the phrase “proven problemsolver” in campaign materials “dating back decades. This signifier in politicscan be traced all the way back as far as 1989.” [So far back! /is old] “Grantingexclusive rights to a single candidate for such a common descriptor wouldremove a phrase from ordinary political discourse and risk chilling corecampaign speech.”

Cloobeck analogized to political trademarks obtained byother candidates, citing examples such as “MAKE AMERICA GREAT AGAIN,” “YES WECAN,” and “BUILD BACK BETTER.” But “those slogans were historically distinctiveand uniquely associated with a specific candidate or movement,” not merelydescriptive. [Ugh. The first two at least were very deliberately, intentionallynot new! If we want to protect political speech (we should), we need (a) a highbarrier for protecting political slogans as a factual matter and (b) a testthat is hesitant to impose liability on politicians’ speech. Both are useful,(a) to prevent the use of political trademarks as a sword against politicalspeech and (b) as a shield for political speech even against non-politicians’claims.]

[Side note that the court calls the phrase at issue a“descriptive, generic” slogan, and TM law would say there’s a big differencebetween the two in terms of theoretical protectability—but it doesn’t matterhere, and also the PTO understandably requires more evidence of distinctivenessif something is highly descriptive/bordering on generic, so the court’sinstincts here make sense.]