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 competing
candidate Villaraigosa. Cloobeck used “I AM A PROVEN PROBLEM SOLVER” in
connection with his gubernatorial campaign since March 2024; he applied to
register it in late 2024. Villaraigosa later began using the phrase “PROVEN
PROBLEM SOLVER” in connection with his campaign.

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

First, the court says, the Lanham Act governs commercial
speech, 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 for
nothing, endorsed by the Supreme Court in JDI)? First, it’s not binding
in the Ninth Circuit. Second,

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

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

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

Political messaging and campaign communications also
routinely involve soliciting contributions, event participation, and even
memberships (donor’s circles!). They’re two different ways of saying the same
thing. Please note the “contribute” button on these screenshots from
defendant’s website, included in plaintiff’s complaint:

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

The court here also distinguishes other political speech
cases 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 political
advertising as a sponsorship/approval case. The court said that the use of
“PROVEN PROBLEM SOLVER” here “does not implicate confusion over the origin or
sponsorship of goods or services, but rather falls within the heartland of core
political expression. Accordingly, while Browne recognized that the
Lanham Act may extend to certain political activities when there is a
significant risk of confusion, this Court is unconvinced the Lanham Act is
applicable to the political circumstances at bar.”

OK, but (1) if the issue is lack of confusion, no special
treatment for political speech is required; (2) if the issue is that political
speech requires us to tolerate more risk of confusion, that should be said
outright; (3) if the factual claim is that this kind of political speech is
just inherently less likely to cause confusion than two nearly identical
political party names or the use of famous songs by famous entertainers, then
that should also be said outright. To be clear, I think both (2) and (3) are
correct and also more helpful than just saying “these are different
situations,” because knowing why they’re different is useful. Why couldn’t one
politician endorse another? Brad Lander and Zohran Mamdani cross-endorsed in their primary—and
although 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, LLC
v. 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 Lanham
Act. “Both Think Rubix and the present case involve political and civic
engagement campaigns that use short punchy phrases as part of their political
messaging. In each, the marks’ purpose is to inspire individuals to vote, not
to identify or promote a commercial product or service.” “PROVEN PROBLEM
SOLVER” was also used in campaign materials and messaging to persuade voters, “not
to 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 not
selling goods or services or participating in the marketplace—he is seeking
votes from the public for his 2026 California gubernatorial campaign.” [We’ve
just stuffed the relevant considerations into the definition of “participating
in the marketplace,” though—was the McCain campaign “participating in the
marketplace” when it ran its allegedly infringing ad? If so, how was it doing
so differently than defendant here? Are political endorsements a relevant
“market”?]

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

Voters understand that Cloobeck and
Villaraigosa are two distinct individuals and political candidates—they are
opponents in a high-profile gubernatorial election. They have separate and
distinct campaign websites, social media accounts, and both engage with the
public widely and separately through campaign speeches and messaging. No
reasonable person would believe Cloobeck and Villaraigosa are affiliated simply
because both use a descriptive phrase commonly used by political candidates for
their campaigns. Moreover, the [complaint] contains no allegations of
misdirected donations, mistaken identity, or any other indica of confusion.

“PROVEN PROBLEM SOLVER” was also generic for a desirable
political trait, not a source identifier. “When voters consider candidates for
public office, they naturally seek individuals who can solve the problems of
their communities.” Numerous politicians have used the phrase “proven problem
solver” in campaign materials “dating back decades. This signifier in politics
can be traced all the way back as far as 1989.” [So far back! /is old] “Granting
exclusive rights to a single candidate for such a common descriptor would
remove a phrase from ordinary political discourse and risk chilling core
campaign speech.”

Cloobeck analogized to political trademarks obtained by
other candidates, citing examples such as “MAKE AMERICA GREAT AGAIN,” “YES WE
CAN,” and “BUILD BACK BETTER.” But “those slogans were historically distinctive
and uniquely associated with a specific candidate or movement,” not merely
descriptive. [Ugh. The first two at least were very deliberately, intentionally
not new! If we want to protect political speech (we should), we need (a) a high
barrier for protecting political slogans as a factual matter and (b) a test
that is hesitant to impose liability on politicians’ speech. Both are useful,
(a) to prevent the use of political trademarks as a sword against political
speech 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 difference
between the two in terms of theoretical protectability—but it doesn’t matter
here, and also the PTO understandably requires more evidence of distinctiveness
if something is highly descriptive/bordering on generic, so the court’s
instincts here make sense.]

from Blogger http://tushnet.blogspot.com/2025/12/court-rejects-politicians-slogan-claim.html