Politics

The Obamas want ‘Higher Ground.’ But someone got there first

FILE - In this Oct. 31, 2017 file photo, former President Barack Obama, right, and former first lady Michelle Obama appear at the Obama Foundation Summit in Chicago. The couple's production company is teaming up with Spotify to produce exclusive podcasts for the platform. Under the Higher Ground partnership announced Thursday, June 6, 2019, the former president and first lady will develop and lend their voices to select podcasts on wide-ranging topics to connect with listeners around the world. (AP Photo/Charles Rex Arbogast, File)
AP/File
Former President Barack Obama, right, and former first lady Michelle Obama in October 2017.

Hanisya Massey, owner of Higher Ground Enterprises in Covina, California, first heard from a lawyer for Higher Ground Productions early this summer.

Barack and Michelle Obama wanted to trademark their company’s 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 Obamas’ lawyer to requests by Massey for on-screen roles in their productions and, now, an attempt by the former president and first lady’s company to have Massey’s trademark wiped off the books.

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The case isn’t expected to slow the Obamas’ post-presidency plans to break into the entertainment business — or to prevent them from using the name. The first film from their Netflix deal, “American Factory,” has already been released on the streaming site, and more content is in the works.

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The Obamas landed on Higher Ground, inspired by the Stevie Wonder song of the same name. But Massey got the name first.

Hanisya Massey, owner of computer training company Higher Ground Enterprises, at her home in West Covina, Calif., Sept. 5, 2019. Massey is in a trademark dispute with former White House occupants Barack and Michelle Obama's Higher Ground Productions. Sorting it out could take years. (Brad Torchia/The New York Times)
Brad Torchia/The New York Times
Hanisya Massey, owner of computer training company Higher Ground Enterprises, at her home in West Covina, Calif.

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 “higher playing field.” Now, Massey said, her company’s 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, “you just never know.”

The Obamas’ Higher Ground Productions has successfully found resolutions with other similar trademark holders, the company’s trademark lawyer, Jim Vana, said in a statement. But with Massey’s company, the Obamas have hit a snag.

Massey and her lawyer, Larry Zerner, came back with a proposal to sell the mark — in exchange for what Vana called “significant demands,” including appearances in the Obamas’ TV and film productions.

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Massey referred all questions about proposed terms to her lawyer, who confirmed that acting roles for Massey were part of her suggested deal.

“It was not, ‘I want to star in a movie,’” Zerner said in an interview. “It was like, ‘Can I get a bit part in something?’”

A few weeks ago Higher Ground Productions filed a petition to cancel Massey’s 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 Obamas’ filing starts a fact-intensive inquiry that could take years to sort out.

“If there’s not sufficient use of the mark, then the registrant has no rights and the Obamas can go ahead,” Tushnet said. If there is sufficient use, she added, Massey could have a potential trademark infringement claim.

As for Massey’s request for roles in the Obamas’ productions, it isn’t exactly typical in trademark cases, Tushnet said in an email. “I can’t say I’m 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),” she wrote. “Nor am I surprised that it wasn’t 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.”

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“Some judges might feel it’s kind of tacky,” she added, “but it doesn’t affect the legal question of who has the right to the mark.”

Vana said Higher Ground Productions filed the petition after having difficulty finding evidence of Massey’s company or use of the trademark. Massey said she has invoices and advertisements to present as evidence. A client — Yvette Rodriguez, who said in an interview that Massey has handled her nonprofit’s social media presence for about four years — sang her praises.

But her company’s internet presence was dormant for years, which Massey argues shouldn’t 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 Zerner’s 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 Obamas’ prominence.

“It could definitely hurt my business severely,” Massey said. “Because 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.”

Vana, however, said that the petition “in no way” hinders Massey’s 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 isn’t a political fight for Massey, who said she voted for Obama for president both times. “They put their pants on just like me, one leg at a time,” she said. “It didn’t really make any difference to me who it was.”

“They were the ones who started this. I’m willing to go as far and long as it takes,” Massey added. “The question is, can they?”