An attorney representing retired neurosurgeon Ben Carson, whose grass-roots base and outsider appeal have propelled him to second place in GOP presidential primary polls, is demanding the removal of pro-Carson merchandise available on the online marketplace CafePress.

Attorney K. Clyde Vanel made the demand last week, insisting in an email that the website remove the T-shirts, bumper stickers and lawn signs created and sold by third parties in support of Carson’s bid.

Vanel alleged trademark infringement, copyright infringement, misappropriation of name and likeness and “privacy rights infringement” in his short letter.

The marketplace has no plans to remove the merchandise, however, and attorney Paul Alan Levy of Public Citizen issued Vanel a merciless response Wednesday.

“To borrow from a slogan that is much used in this campaign, it doesn’t take a brain surgeon to understand how baseless these claims are,” Levy wrote.

Levy has been down this road before. In 2008, he fought the Republican National Committee’s demand that CafePress remove merchandise bearing the acronym GOP and its elephant logo. The RNC gave in after the uncowed site responded with First Amendment and fair use claims and moved to seek declaratory judgment from a court.

“I trust that Carson will want to save a similar embarrassment for his political campaign,” Levy wrote to Vanel, describing his claims as “simply absurd” and saying it was shocking an attorney claiming to specialize in intellectual property law would sign such a demand.

The Public Citizen attorney says the most he would concede to Carson is that use of his campaign’s specific logo – which is on his website and involves particular coloring and the words “Heal+Inspire+Revive” – would be protected by trademark claims. A trademark registration filing from the Carson campaign includes "Ben Carson for President 2016" with the same color scheme.

Ben Carson's presidential campaign says it's illegal to sell unauthorized pro-Carson merchandise. Some items available on CafePress.com are pictured.

CafePress Images

But Levy points out in his letter that “it is very common for people to express their views about presidential candidacies, completely independent of the campaign.” A super PAC supporting Carson – but which by law cannot coordinate efforts with him – also has various pro-Carson items for sale on its website.

Levy swatted at Vanel’s claim that Carson’s privacy is being invaded as “particularly foolish” in his rebuttal, and pointed out it’s possible one of the people who urged Carson to run before the doctor entered the race would be the copyright owner of phrases such as “Ben Carson for President 2016” – making Carson the violator, should ability to copyright the phrase exist.

The particular wording on various pro-Carson merchandise on CafePress, Levy wrote, is not commercial speech – as a professional football team’s logo would be, for example, granting it greater protection. The wording amounts to political speech protected by the First Amendment. “The First Amendment protection for noncommercial speech extends to bar trademark claims,” Levy wrote.

In a short phone conversation Friday, Vanel told U.S. News he hadn’t yet seen the response and therefore could not comment.

A spokesman for the Carson campaign, however, stood by the demand that CafePress yank the pro-Carson merchandise and confirmed Vanel was authorized to issue the demand.

“Why do we care? Because these people, and others, leverage our campaign and image to line their pockets, and often imply that the proceeds are used to support the campaign, which is false,” Carson spokesman Doug Watts says.

“We’ve had many – and by that I mean hundreds of supporters – write and complain that they wanted their money to support the campaign, and they found that wasn’t the case,” he says. “So, like all other copyright holders, we are forced to protect our rights across the board.”

Levy says those rights don’t legally amount to much, and he suspects the campaign will quietly back off the demand.

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