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INTRODUCTION
During the 2004 Olympic Games in Athens, Greece-on the eve of the U.S. presidential election-President George W. Bush ran a political advertisement crediting his administration with "liberating" the Afghani and Iraqi athletes for their participation in the games.1 Bush drew fierce criticism from political commentators and the athletes, but it was the concern of the U.S. Olympic Committee (USOC) that also made headlines.2 The USOC claimed that President Bush's use of the word "Olympic" may have violated the committee's exclusive rights in the term, and ran counter to the organization's bylaws.3
This incident is just one of the recent high-profile examples of a clash that is becoming increasingly common in the U.S. political system. We live in a consumer-driven society, where product promotion is common in even the most unlikely places, and where brand icons are often the most powerful tool for companies to connect with the American public.4 Our nation's attention span is ever shortening, while the clutter is ever expanding, such that those with a message to convey must compete daily with thousand of other messages attacking the consumer.5 Simultaneously, the line between politics and entertainment is often blurred, with celebrities actively joining the political fray and entertainment icons taking public office.6 One consequence of this blurring of lines becomes a culture in which familiar consumer images can be very powerful tools for political candidates to use in reaching voters. At the same time, those political candidates open themselves up to parody and ridicule by consumers themselves.7 The inevitable result of this interplay is a tension between the First Amendment's protection of free speech8 and the intellectual property laws that protect a company's interest in maintaining its brand identity.9
Recently, two cases decided in federal courts in New York and Ohio dealt with political candidates' use of popular advertising icons in their campaign.10 These were the first cases to evaluate this question in the realm of political campaigning.11 The first, American Family Life Insurance Co. (AFLAC) v. Hagan, occurred during the 2002 race for governor in Ohio.12 Tim Hagan, a candidate, created an Internet character called the TaftQuack duck designed to mock his opponent's position on a variety of issues.13 While the duck was crudely drawn, its quacking sound bore a...