Barack and Michelle Obama wanted to trademark their companyâs name, but the U.S. Patent and Trademark Office had deemed it too similar to the mark Massey registered in 2017 for her computer training company. Higher Ground Productions was looking to strike a deal.
So began the dispute, which escalated from an initial note sent by the Obamasâ lawyer to requests by Massey for on-screen roles in their productions and, now, an attempt by the former president and first ladyâs company to have Masseyâs trademark wiped off the books.
The case isnât expected to slow the Obamasâ post-presidency plans to break into the entertainment business â or to prevent them from using the name. The first film from their Netflix deal, âAmerican Factory,â has already been released on the streaming site, and more content is in the works.
The Obamas landed on Higher Ground, inspired by the Stevie Wonder song of the same name. But Massey got the name first.
Higher Ground Enterprises started training people to use computers more than 10 years ago, Massey said. Her inspiration for the name stems from her clients, who she said wanted to be on a âhigher playing field.â Now, Massey said, her companyâs services include consulting, photography, videography, e-books and other learning materials. It was her father who encouraged her to trademark Higher Ground Enterprises, telling Massey, âyou just never know.â
The Obamasâ Higher Ground Productions has successfully found resolutions with other similar trademark holders, the companyâs trademark lawyer, Jim Vana, said in a statement. But with Masseyâs company, the Obamas have hit a snag.
Massey and her lawyer, Larry Zerner, came back with a proposal to sell the mark â in exchange for what Vana called âsignificant demands,â including appearances in the Obamasâ TV and film productions.
Massey referred all questions about proposed terms to her lawyer, who confirmed that acting roles for Massey were part of her suggested deal.
âIt was not, âI want to star in a movie,ââ Zerner said in an interview. âIt was like, âCan I get a bit part in something?ââ
A few weeks ago Higher Ground Productions filed a petition to cancel Masseyâs trademark. Rebecca Tushnet, a Harvard Law School professor and an expert in intellectual property law, said in an interview that the goal of this move would be to determine whether Massey is actively and regularly using the trademark to conduct business. The Obamasâ filing starts a fact-intensive inquiry that could take years to sort out.
âIf thereâs not sufficient use of the mark, then the registrant has no rights and the Obamas can go ahead,â Tushnet said. If there is sufficient use, she added, Massey could have a potential trademark infringement claim.
As for Masseyâs request for roles in the Obamasâ productions, it isnât exactly typical in trademark cases, Tushnet said in an email. âI canât say Iâm super surprised given the context (where she might have greater than usual leverage in seeking a role she might otherwise not be able to get),â she wrote. âNor am I surprised that it wasnât an acceptable term to the Obamas given the interference with creative control it would mean and given the lack of any apparent relationship between that condition and the rights to use the trademark.â
âSome judges might feel itâs kind of tacky,â she added, âbut it doesnât affect the legal question of who has the right to the mark.â
Vana said Higher Ground Productions filed the petition after having difficulty finding evidence of Masseyâs company or use of the trademark. Massey said she has invoices and advertisements to present as evidence. A client â Yvette Rodriguez, who said in an interview that Massey has handled her nonprofit's social media presence for about four years â sang her praises.
But her companyâs internet presence was dormant for years, which Massey argues shouldnât reflect her business presence. The current website for Higher Ground Enterprises was still in development on Sept. 4, but it was up and running the next day. (The site was later updated to include a section recommending Zernerâs services, which was then removed after Massey was asked about it.)
Even without having had that presence online for some time, this case and the petition has left Massey concerned about the digital effect of the Obamasâ prominence.
âIt could definitely hurt my business severely,â Massey said. âBecause if you Google this, this is the only thing that comes up. And I am pretty much a little needle in the haystack at this point.â
Vana, however, said that the petition âin no wayâ hinders Masseyâs ability to run Higher Ground Enterprises.
It could be a while before there is an outcome. Trademark cases are decided on paper rather than in a courtroom, Zerner said, and for a petition such as this one, the Trademark Office automatically sets up dates and deadlines. This case could stretch into March 2021.
This isnât a political fight for Massey, who said she voted for Obama for president both times. âThey put their pants on just like me, one leg at a time,â she said. âIt didnât really make any difference to me who it was.â
âThey were the ones who started this. Iâm willing to go as far and long as it takes,â Massey added. âThe question is, can they?â
This article originally appeared in
.