Former President Trump’s personal attorney Rudy Giuliani has had a rough couple of months. First, he was caught allegedly undoing his pants in the new Borat movie. Then he publicly sweat through his hair dye. Then he audibly farted during a Michigan election hearing. And finally, on December 6, it was announced that Rudy tested positive for Covid-19, not shocking for a man who was crisscrossing the country, mask-free, while attempting to justify his election fraud claims. One of Giuliani’s (somehow) more laughable snafus over the past few months offers a teachable moment in trademark law. On Saturday, November 7, the day the election was called for Biden, Rudy Giuliani held a press conference to refute the results of the election. That morning, Trump tweeted enthusiastically that there would be an afternoon press conference at The Four Seasons Hotel in downtown Philadelphia. Soon, that tweet was deleted, and a new tweet announced that the Trump campaign was holding the press conference in the parking lot of Four Seasons Total Landscaping, a small landscaping company in an industrial area of town, over ten miles away from downtown Philly where ballots were still being counted.
The press conference turned out to be a comical tirade against the election results, made all the more comical by the fact that it inexplicably took place in the parking lot of a random, unknown landscaping company in between a sex shop and a crematorium. The Trump campaign has vociferously denied that the press conference location was booked by mistake, and recent comments by Four Seasons Total Landscaping seem to confirm that the Trump campaign at least might have booked the location on purpose. However, many people, including your writer, find it difficult to believe that a small, industrial, working-class landscaping company in a random location outside of downtown Philadelphia would make it on the list (let alone be a first choice) of locations to hold a Trump campaign press conference.
If the snafu was indeed a mistake–perhaps a low-level staffer was tasked with calling the “Four Seasons” and just clicked on the first business that appeared on Google Maps; perhaps Four Seasons Total Landscaping was the first choice, but Trump misunderstood it to be Four Seasons the luxury hotel and tweeted before being corrected–it offers an interesting lesson in trademark law. In short, trademark laws could not have protected against this confusion because the law assumes that the average consumer would have been smart enough to discern the difference between the two businesses. And yet.
The Lanham Act, codified as 15 U.S.C. §§ 1051 et seq., is the law that governs federal trademarks in the United States. That law provides that a trademark may not be registered if it is likely to cause consumer confusion with another mark that is already registered. Courts determine whether or not a mark causes consumer confusion via an analysis of 12 factors known as the du Pont factors, named after the famous case in which they were established. An analysis of each of the factors in relation to Four Seasons Total Landscaping and the Four Seasons hotel chain is beyond the scope of this post, but one factor, in particular, is worth highlighting.
One of the key factors courts look to in determining whether consumers will be confused by the existence of two similar marks in the marketplace is the similarity or relatedness of the goods and services offered in connection with each mark. You see, courts assume that consumers have a certain level of sophistication or ability to make discerning decisions when choosing on which products or services to spend their money. The average consumer may not be the most sophisticated person out there, but they will generally be able to tell when two marks denote two different sources of goods or services if those goods or services are drastically different. I believe this is what is known in laypeople’s terms as “common sense.”
For example, say you wanted to visit Philadelphia with your partner, and you are tasked with finding the right hotel. Say you have some extra cash to spare, so you decide to go with a higher-end hotel chain. Four Seasons pops in your head as a recognizable chain that provides hotel services that you have learned are trustworthy and worth the extra money. So, you type “Four Seasons Philadelphia” into Google. A number of sites pop up and, after a few seconds of scanning, you are able to see that the top two sites are for a hotel chain and a landscaping company. This does not confuse you because you are looking for the hotel chain, and landscaping is easily distinguishable from hotels. You would not wonder whether the Four Seasons hotel chain has also started a landscaping business and click on that link instead.
Because you are an average consumer with an average amount of common sense, this does not take an advanced level of sophistication on your part. Thus, courts are not concerned with whether you will be confused by the existence of both marks in the marketplace, and this du Pont factor would likely be found to weigh against a finding of likelihood of confusion. If the Four Seasons hotel chain tried to sue Four Seasons Total Landscaping for trademark infringement, they would likely lose on this factor. An examining attorney at The U.S. Patent and Trademark Office (USPTO) would not flag a trademark application for “Four Seasons” in relation to landscaping as potentially being confused with “Four Seasons” in relation to hotel services because it is generally accepted as common sense that consumers will understand that the goods and services are not related. Nothing in the Lanham Act or judicial trademark precedent could have protected Giuliani or the Trump campaign from the Four Seasons Total Landscaping presser snafu.
Indeed, a search of the USPTO trademark database (“TESS”) for “Four Seasons” turns up 537 records, including FOUR SEASONS HAT CO., FOUR SEASONS FELT, and 4 SEASONS AUTOMOTIVE. The search also includes FOUR SEASONS TOTAL LANDSCAPING, which is not, in fact, owned by the Philadelphia company made famous by the aforementioned press conference, but is instead a recent application submitted by a company called My First Productions in Hawaii to be used in connection with a comedy television series. All of these marks are allowed to exist in the marketplace because, when seen in connection with the goods or services they are being used to market, judges, courts, examining attorneys, the USPTO, and the law as written all assume that the average consumer will be able to tell the difference. And yet.
For their part, Four Seasons Total Landscaping has made the most of this presidential trademark blunder. Brilliantly, they quickly created various social media accounts on which they shared the multitude of memes that were circulating. They also coined the terms “in sod we trust” and “lawn and order,” which they had printed, along with the Four Seasons Total Landscaping logo, on t-shirts, face masks, and stickers. The company has amassed over $1.3 million in sales, a powerful indicator of the value a recognizable trademark can bring, even if only by accident.
As for Rudy, it is unclear how many more laughable blunders we will see from him now that his boss is out of a job. Suffice it to say, though, that the Four Seasons Total Landscaping presser was a once-in-a-lifetime meeting of comedy gold and trademark law, a shining beacon of levity in the rubble of an otherwise violent and tumultuous presidency. So long, Rudy. You will not be missed, but you (or at least this picture of you standing in the dirt in front of the garage behind Four Seasons Total Landscaping) will not soon be forgotten.
Leeja Miller is an intellectual property attorney by day who moonlights as a YouTuber on a mission to demystify the law and how it affects viewers’ everyday lives through political, current events, and pop culture commentary. She is passionate about making the law more accessible and less elitist through the creation of engaging and entertaining content. Leeja lives in Minneapolis with her extremely fat cat named Bubbles. Bubbles is currently on a diet and greatly displeased. You can find more of Leeja’s content on YouTube, Instagram, Twitter, and, yes, even TikTok.