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`RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
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`File Name: 24a0205p.06
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`UNITED STATES COURT OF APPEALS
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`FOR THE SIXTH CIRCUIT
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`LIBERTARIAN NATIONAL COMMITTEE, INC.,
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`Plaintiff-Appellee,
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`v.
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`MICHAEL J. SALIBA; RAFAEL WOLF; GREG STEMPFLE;
`ANGELA THORNTON-CANNY; JAMI VAN ALSTINE;
`MARY BUZUMA; DAVID CANNY; JOSEPH BRUNGARDT,
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`Defendants-Appellants.
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`No. 23-1856
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`Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor.
`No. 5:23-cv-11074—Judith E. Levy, District Judge.
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`Argued: June 11, 2024
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`Decided and Filed: August 28, 2024
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`Before: COLE, GIBBONS, and READLER, Circuit Judges.
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`_________________
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`COUNSEL
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`ARGUED: Lena Shapiro, Lilian Alexandrova, Jonathan Resnick, UNIVERSITY OF ILLINOIS
`COLLEGE OF LAW, Champaign, Illinois, for Appellants. Joseph J. Zito, DNL ZITO
`CASTELLANO, Washington, D.C., for Appellee. ON BRIEF: Lena Shapiro, Lilian
`Alexandrova, Jonathan Resnick, UNIVERSITY OF ILLINOIS COLLEGE OF LAW,
`Champaign, Illinois, C. Nicholas Curcio, CURCIO LAW FIRM, PLC, Nuncia, Michigan, for
`Appellants. Joseph J. Zito, DNL ZITO CASTELLANO, Washington, D.C., for Appellee.
`Rebecca Tushnet, HARVARD LAW SCHOOL, Cambridge, Massachusetts, for Amici Curiae.
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`

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`No. 23-1856
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`Libertarian Nat’l Comm., Inc. v. Saliba, et al.
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`Page 2
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`_________________
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`OPINION
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`_________________
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`JULIA SMITH GIBBONS, Circuit Judge. This trademark action arises out of a dispute
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`within the Libertarian Party of Michigan (referred to by name or as the “Michigan affiliate”).
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`The Libertarian National Committee, Inc. (“LNC”) sued dissenting members of the Michigan
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`affiliate—mainly former officers of the affiliate or board members of local parties—for using the
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`LNC’s trademark to hold themselves out as the official Michigan affiliate after a turnover of
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`power resulted in two factions claiming to hold power. The district court granted the LNC’s
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`request to preliminarily enjoin the dissenting members’ use of the mark, and the dissenting
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`members appealed. They argue that the district court’s application of the Lanham Act to the
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`context of noncommercial speech both unduly expands the Act and violates the First
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`Amendment. Even if the Lanham Act covers the dissenting members’ use of the trademark, they
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`argue that their use was authorized and not likely to cause confusion. We affirm in part and
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`vacate in part the preliminary injunction.
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`I.
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`In 2022, two top officers of the Libertarian Party of Michigan resigned, expressing
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`concern about a perceived shift in the ideology of the Libertarian Party’s controlling caucus.
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`After these resignations, the third most senior member, Andrew Chadderdon, became acting
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`Chair of the Michigan affiliate. Chadderdon was reportedly unpopular within the affiliate—
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`especially with defendants, and his ascendance caused a dispute over the identity of the rightful
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`leadership of the Michigan affiliate. Dissatisfied with his leadership, defendants voted to remove
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`Chadderdon from his executive committee position and then got elected to committee positions
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`themselves. Then, the Libertarian Party Judicial Committee determined that the election violated
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`the applicable bylaws. It reinstated Chadderdon and voided the executive appointments,
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`including those of defendants, that resulted from the vote. Defendants contest the validity of the
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`Judicial Committee’s action and view themselves as the rightful executive board members of the
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`Libertarian Party of Michigan.
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`No. 23-1856
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`Libertarian Nat’l Comm., Inc. v. Saliba, et al.
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`Page 3
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`The LNC sided with Chadderdon and the Judicial Committee, with the LNC’s Chair,
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`Angela McArdle, informing defendant Joseph Brungardt that his representation of being the
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`Chair of the Libertarian Party of Michigan was “patently false.” DE 12-10, McArdle Email,
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`Page ID 474. McArdle further directed Brungardt to stop using the LNC’s trademarks to
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`promote what the LNC viewed as an offshoot political party and an unauthorized convention.1
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`After receiving McArdle’s letter and a cease-and-desist order, defendants admit that they
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`continued to use the LNC’s registered trademarks to hold themselves out as the official
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`Libertarian Party of Michigan in connection with soliciting donations, filing campaign finance
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`paperwork, and promulgating platform positions, endorsements, and commentary critical of the
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`Chadderdon-chaired group.
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`The LNC sued, bringing various claims of trademark infringement in federal court. The
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`LNC then moved for a preliminary injunction barring defendants from continuing to use the
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`LNC’s mark. After holding a hearing, the district court granted the LNC’s motion to enjoin
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`defendants from using the trademark. Defendants timely appealed.2
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`II.
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`A district court’s decision to grant or deny a preliminary injunction involves
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`consideration of four factors: (1) whether the movant demonstrated “a strong likelihood of
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`success on the merits; (2) whether the movant would suffer irreparable injury absent the
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`injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether
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`the public interest would be served by the issuance of an injunction.” Bays v. City of Fairborn,
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`668 F.3d 814, 818–19 (6th Cir. 2012).
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`We typically review a district court’s decision to grant a preliminary injunction for abuse
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`of discretion. Taubman Co. v. Webfeats, 319 F.3d 770, 774 (6th Cir. 2003). In line with this
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`1The LNC owns of the following trademarks: Reg. No. 2,423,459, “Libertarian Party,” and Reg. No.
`6,037,046, made up of the word, “Libertarian,” accompanied by an icon depicting a torch and an eagle. During the
`course of this suit, the parties jointly stipulated that defendants would not use the mark depicting a torch and eagle
`during the pendency of the proceedings. Only defendants’ use of the first “Libertarian Party” mark remains at issue.
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`2In a separate order, the district court also denied defendants’ subsequent request to stay the injunction
`pending this appeal.
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`No. 23-1856
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`Libertarian Nat’l Comm., Inc. v. Saliba, et al.
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`Page 4
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`
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`standard, we “review the district court’s legal conclusions de novo and its factual findings for
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`clear error.” Id. (quoting Owner-Operator Indep. Drivers Ass’n v. Bissell, 210 F.3d 595, 597
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`(6th Cir. 2000)). The movant’s likelihood of success on the merits is a question of law which we
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`review de novo. See A.C.L.U. Fund of Mich. v. Livingston County, 796 F.3d 636, 642 (6th Cir.
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`2015). In a trademark infringement action, the first factor is typically dispositive of the validity
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`of the preliminary injunction. See PGP, LLC v. TPII, LLC, 734 F. App’x 330, 332 (6th Cir.
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`2018); see also Wynn Oil Co. v. Am. Way Serv. Corp., 943 F.2d 595, 608 (6th Cir. 1991).
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`Because the district court rested its irreparable harm and public interest determinations on the
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`LNC’s likelihood of success on the merits, we find the likelihood of success element dispositive.
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`III.
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`This case largely turns on whether defendants’ use of the LNC’s mark to, among other
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`things, solicit party donations, fill out campaign finance paperwork, advertise events, and
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`espouse political platform positions and commentary falls within the scope of the Lanham Act.
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`The Lanham Act imposes liability on:
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`(1) Any person who shall, without the consent of the registrant—
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`use in commerce any reproduction, counterfeit, copy, or colorable
`imitation of a registered mark in connection with the sale, offering
`for sale, distribution, or advertising of any goods or services on or
`in connection with which such use is likely to cause confusion, or
`to cause mistake, or to deceive . . . .
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`15 U.S.C. § 1114(1)(a).
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`Thus, a plaintiff alleging trademark infringement must show that: “(1) it owns the
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`registered trademark; (2) the defendant used the mark in commerce; and (3) the use was likely to
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`cause confusion.” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citing
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`§ 1114(1)).
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`A.
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`Defendants first argue that they did not use the LNC’s trademark “in connection with the
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`sale . . . or advertising of any goods or services” as required by the Act. 15 U.S.C. § 1114(1)(a).
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`They contend that, because the Lanham Act regulates trademark infringement only in
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`No. 23-1856
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`Libertarian Nat’l Comm., Inc. v. Saliba, et al.
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`Page 5
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`
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`commercial speech as defined in the First Amendment context, their use of the LNC’s trademark
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`in the course of political speech falls outside the Act’s reach. For this position, defendants
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`primarily rely on Taubman Co. v. Webfeats, 319 F.3d 770 (6th Cir. 2003), which discussed the
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`interplay between the First Amendment and the Lanham Act in the context of a defendant’s use
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`of a trademark to discuss and critique the trademark’s owner. Contrary to defendants’ position,
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`we do not think Taubman resolves this case.
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`In Taubman, this Circuit addressed the use of a shopping mall’s trademark in domain
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`names by the creator of a “fan site” and, after the relationship between the parties soured, a gripe
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`site for that mall. 319 F.3d at 772. The website creator contended that his purpose for using the
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`mall’s trademark in his websites was expressive rather than commercial, and thus outside of the
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`realm of the Lanham Act and protected by the First Amendment. Id. at 774–76. In combatting
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`the defendant’s allegation that the Lanham Act conflicted with the First Amendment, the
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`Taubman Court reasoned that the Lanham Act is constitutionally sound “because it only
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`regulates commercial speech, which is entitled to reduced protections under the First
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`Amendment.” Id. at 774 (citing Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of
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`New York, 447 U.S. 557, 563 (1980)). The court construed this limitation as statutory, stating
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`that “any expression embodying the use of a mark not ‘in connection with the sale . . . or
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`advertising of any goods or services,’ . . . is outside the jurisdiction of the Lanham Act and
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`necessarily protected by the First Amendment.” Id. at 775 (quoting § 1114(1)).
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`Applying these strictures, Taubman held that the defendant’s use of the trademark in
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`connection with a website that displayed advertisements for his and his girlfriend’s businesses
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`was commercial and thus able to be regulated under the Lanham Act. Id. But after the defendant
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`removed the advertisements and stipulated against future use, the court found the trademark use
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`no longer “‘in connection with the advertising’ of goods and services” and thus no longer within
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`the scope of the Act. Id. With no ongoing violation, the court deemed an injunction
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`inappropriate. Id. Taubman then contemplated the First Amendment in the context of the
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`defendant’s second website—his gripe site, “taubmansucks.com.” Id. at 777–78. Rejecting the
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`shopping mall’s trademark claim yet again, the court found the defendant’s use protected by the
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`First Amendment as “critical commentary” that created “no confusion as to source.” Id. at 778.
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`No. 23-1856
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`Libertarian Nat’l Comm., Inc. v. Saliba, et al.
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`Page 6
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`Thus, the use was “purely an exhibition of Free Speech” and “not subject to scrutiny under the
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`Lanham Act.” Id.
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`In explaining why the defendant’s use of the mall’s mark was protected expression, the
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`Taubman Court expounded that the defendant used the mark to comment on the trademark
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`holder—not “to designate source.” Jack Daniel’s Properties, Inc. v. VIP Prods. LLC, 599 U.S.
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`140, 155 (2023); Taubman, 319 F.3d at 778. In other words, the defendant did not use the mark
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`to pass off the goods or services advertised on his website as those of the shopping mall.
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`Taubman, 319 F.3d at 778.
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`Since Taubman, the Supreme Court has explained how the Lanham Act and the First
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`Amendment interact when a defendant uses a trademark to misrepresent his or her goods or
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`services as those of or associated with the trademark owner. Just last year, the Court noted that
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`where a defendant uses a trademark as a source identifier, “[t]he trademark law generally
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`prevails over the First Amendment.” Jack Daniel’s Properties, 599 U.S. at 159 (quoting Yankee
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`Publ’g Inc. v. News Am. Publ’g Inc., 809 F. Supp. 267, 276 (S.D.N.Y. 1992)). This is because
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`use of a trademark as a source identifier undermines the primary function of trademark law,
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`which is to prevent “misinformation[] about who is responsible for a product” or service. Id. at
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`157. Such is true even where the defendant’s use of the mark also conveys an expressive
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`message. Cf. San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 536,
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`541 & n.19 (1987) (“The mere fact that the [nonprofit defendant] claims an expressive, as
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`opposed to a purely commercial purpose does not give it a First Amendment right to appropriate
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`to itself the harvest of those who have sown.”) (cleaned up). In that circumstance, “the
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`likelihood-of-confusion inquiry does enough work to account for the interest in free expression.”
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`Jack Daniel’s Properties, 599 U.S. at 159.
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`We take this opportunity to clarify that Taubman’s language limiting the Lanham Act’s
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`coverage, while implicated where a defendant uses the mark purely for protected expression, like
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`satire, critique, or commentary, does not prohibit application of the Lanham Act to a defendant
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`who uses the trademark to identify the source of his or her competing goods or services. Cf.
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`Taubman, 319 F.3d at 778 (finding the website creator’s trademark use, which created “no
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`confusion as to source,” “purely an exhibition of Free Speech”). Because the defendants here
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`No. 23-1856
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`Libertarian Nat’l Comm., Inc. v. Saliba, et al.
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`Page 7
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`
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`used the LNC’s trademark to speak as the Libertarian Party of Michigan, defendants used the
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`mark to designate the source of their political services as affiliated with the LNC, thus
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`implicating “the core concerns of trademark law” and rendering Taubman inapposite. Jack
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`Daniel’s Properties, 599 U.S. at 157 (citation omitted); cf. Taubman, 319 F.3d at 778 (“[T]he
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`First Amendment protects critical commentary when there is no confusion as to source.”)
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`(emphasis added).
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`Defendants resist this conclusion by emphasizing that Jack Daniel’s Properties
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`contemplated trademark infringement in the context of commercial products—a context in which
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`trademark law traditionally and comfortably operates. True, trademark law was designed to
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`combat potential consumer confusion and the theft of the trademark owner’s goodwill in the
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`context of commercial sales. See Jack Daniel’s Properties, 599 U.S. at 156–57 (discussing the
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`function of trademarks in terms of producers and manufacturers). And we acknowledge that
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`outside of the facts before us, speech rendered in connection with the provision of political
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`services typically constitutes political speech awarded heightened protection under the First
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`Amendment. See Fed. Election Comm’n v. Cruz, 596 U.S. 289, 302 (2022) (detailing the extent
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`of First Amendment protection in the context of political campaigns). But we find support in
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`Jack Daniel’s Properties for our position that, in the narrow context where a defendant uses the
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`trademark as a source identifier, the Lanham Act does not offend the First Amendment by
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`imposing liability in the political arena.
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`While explaining why a predicate First Amendment test, rather than ordinary trademark
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`scrutiny, does not apply when a defendant uses a trademark as a source identifier, Jack Daniel’s
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`Properties cited a case remarkably similar to the case at hand. 599 U.S. at 155. In United We
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`Stand America, Inc. v. United We Stand, America New York, Inc., the Second Circuit
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`contemplated a trademark infringement action by United We Stand America, Inc., which owned
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`the slogan, “United We Stand America.” 128 F.3d 86, 88 (2d Cir. 1997). After friction within
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`the group, the defendant created an offshoot political coalition, “United We Stand, America New
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`York, Inc.” which also used the slogan to engage in political activities. Id. The Second Circuit
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`deemed the defendant’s trademark use within the scope of the Lanham Act and outside the
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`protection of the First Amendment because the offshoot group used the trademark “as a source
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`No. 23-1856
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`Libertarian Nat’l Comm., Inc. v. Saliba, et al.
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`Page 8
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`identifier” for the group’s political services rather than to pose “commentary on [the
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`trademark’s] owner.” Id. at 92. Accordingly, such use subjected the defendant to Lanham Act
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`liability even though the offshoot coalition “might communicate its political message more
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`effectively by appropriating [the trademark].” Id. at 93.
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`The Supreme Court cited United We Stand with approval of the Second Circuit’s decision
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`to apply ordinary trademark scrutiny even though the defendant’s use of the slogan also “had
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`expressive content.” Jack Daniel’s Properties, 599 U.S. at 155. Because the offshoot political
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`coalition used the trademark “to suggest the ‘same source identification’ as the original ‘political
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`movement,’” such use was not insulated from Lanham Act liability. Id. (quoting United We
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`Stand, 128 F.3d at 93). We find the Supreme Court and the Second Circuit’s reasoning
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`persuasive. Focusing on the use of a trademark as a source identifier adequately accounts for the
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`core interests undergirding trademark law without “suck[ing] in speech on political and social
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`issues through some strained or tangential association with a commercial or transactional
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`activity.” Radiance Found., Inc. v. N.A.A.C.P., 786 F.3d 316, 323 (4th Cir. 2015). Thus, in the
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`narrow context before us, where a defendant uses a trademark as a source identifier, we find the
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`extension of the Lanham Act into the political sphere appropriate.
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`Defendants next contend that, as a political entity, they do not render the type of services
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`included in the scope of the Lanham Act. Accordingly, they argue, their use of the LNC’s mark
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`in connection with these services is not prohibited by the Lanham Act. A “service” is an
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`“amorphous concept, ‘denot[ing] an intangible commodity in the form of human effort, such as
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`labor, skill, or advice.’” Id. (citation omitted). As defendants used the LNC’s trademark to
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`advertise a political convention, operate a website, promulgate political news and party activities,
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`file campaign finance reports, endorse candidates, and solicit donations, they “unquestionably
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`render[ed] a service” contemplated by § 1114(1)(a). United We Stand, 128 F.3d at 90 (finding
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`“services characteristically rendered by a political party to and for its members, adherents, and
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`candidates,” like political organizing, maintaining an office, endorsing candidates, and
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`distributing partisan material to be “services” under the Lanham Act); see also Wash. State
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`Republican Party v. Wash. State Grange, 676 F.3d 784, 795 (9th Cir. 2012) (“The Libertarian
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`Party correctly points out that ‘services’ can include activities performed by a political party.”).
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`No. 23-1856
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`Libertarian Nat’l Comm., Inc. v. Saliba, et al.
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`Page 9
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`Courts have long construed the Lanham Act’s requirement that a defendant use a
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`trademark in connection with the advertisement of “any goods or services” to encompass
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`trademark infringement by political or nonprofit defendants. See United We Stand, 128 F.3d at
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`89–90 (citing N.A.A.C.P. v. N.A.A.C.P. Legal Def. & Educ. Fund, 559 F. Supp. 1337, 1342
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`(D.D.C. 1983), rev’d on other grounds, 753 F.2d 131 (D.C. Cir. 1985)); Am. Diabetes Ass’n, Inc.
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`v. Nat’l Diabetes Ass’n, 533 F. Supp. 16, 20–21 (E.D. Pa. 1981) (applying Lanham Act to
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`nonprofit’s use of competing nonprofit’s trademark to solicit donations), aff’d, 681 F.2d 804 (3d
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`Cir. 1982) (Table); U.S. Jaycees v. Phila. Jaycees, 639 F.2d 134, 146 (3d Cir. 1981) (enjoining
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`disaffiliated civic group from using trademark of national group after ideological split); cf. U.S.
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`Jaycees v. S.F. Jr. Chamber of Com., 354 F. Supp. 61, 71 (N.D. Cal. 1972) (agreeing that
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`“benevolent, religious, charitable or fraternal organizations” are entitled to injunctive relief in the
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`context of a common law unfair competition claim when local chapters disaffiliate but continue
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`to use the organization’s name), aff’d, 513 F.2d 1226 (9th Cir. 1975) (per curiam).3 This history
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`reflects the longstanding recognition that “[t]he protection of the trademark or service mark of
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`non-profit and public service organizations,” just as for for-profit entities, “requires that use of
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`the mark by competing organizations be prohibited.” United We Stand, 128 F.3d at 89; see also
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`1 McCarthy on Trademarks and Unfair Competition § 9:6 (5th ed. 2024) (“Names of
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`professional and fraternal organizations are given the same protection against confusing use of
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`their names as is given to business corporations. . . . Protection is [also] extended to the names of
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`nonprofit political groups . . .”).
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`And because defendants used the LNC’s mark to identify the source of these services,
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`they used the mark “in connection with” the advertising or distribution of services within the
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`scope of the Lanham Act. See 15 U.S.C. § 1114(1)(a); see also Radiance Found., 786 F.3d at
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`3District courts have also applied the Lanham Act to enjoin unions and political actors from using
`trademarks as source identifiers in the provision of services. See Brach Van Houten Holding, Inc. v. Save Brach’s
`Coal. for Chi., 856 F. Supp. 472, 475–77 (N.D. Ill. 1994) (defendant advocacy group’s use of trademark in the
`provision of advocacy services for workers constituted “service[s]” within the meaning of the Lanham Act);
`Republican Nat’l Comm. v. Canegata, No. 3:22-cv-0037, 2022 WL 3226624, at *3–9 (D.V.I. Aug. 10, 2022)
`(enjoining former chairman of local Republican party who continued to portray himself as the chairman from using
`RNC trademarks); Partido Revolucionario Dominicano (PRD) Seccional Metropolitana de Washington-DC,
`Maryland y Virginia v. Partido Revolucionario Dominicano, Seccional de Maryland y Virginia, 312 F. Supp. 2d 1,
`10–16 (D.D.C. 2004) (enjoining offshoot political chapter from using trademarked name to offer political services
`and noting that Lanham Act “protections extend to the names and symbols related to political organizations”).
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`Page 10
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`323 (“[I]f in the context of a sale, distribution, or advertisement, a mark is used as a source
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`identifier, we can confidently state that the use is ‘in connection with’ the activity.”). Defendants
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`assert that this finding conflicts with almost every other circuit to consider the matter. But we
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`find this to be an overstatement. As discussed above, we are not the first to apply the Lanham
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`Act against nonprofit or even political defendants rendering services. And the cases identified
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`by defendants are readily distinguishable: they dealt with defendants using trademarks to engage
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`in social commentary about the trademark holder’s goods or services—not for source
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`identification of their own.
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`For example, the Ninth Circuit in Bosley Medical Institute, Inc. v. Kremer deemed a
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`defendant’s use of a trademark in a domain name of a website created to complain about the
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`trademark holder’s services not “in connection with a sale of goods or services” and thus not
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`prohibited by the Lanham Act. 403 F.3d 672, 677–80 (9th Cir. 2005). Like other courts, it held
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`that the Lanham Act simply did not seek to protect against an infringer who is not the trademark
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`holder’s competitor, but rather its critic. Id. at 679; see also Utah Lighthouse Ministry v. Found.
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`For Apologetic Info. & Research, 527 F.3d 1045, 1053–54 (10th Cir. 2008) (addressing different
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`section of the Lanham Act and finding the use of a trademark to create a parody website outside
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`the Act’s scope as “merely . . . a comment on the trademark owner’s goods or services” rather
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`than a use “in connection with the goods or services of a competing producer”); Farah v. Esquire
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`Magazine, 736 F.3d 528, 541 (D.C. Cir. 2013) (assessing different section of the Lanham Act
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`and finding that a defendant’s use of a trademark in a satirical article about the trademark
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`holders’ political positions constituted “political speech” rather than the promotion of competing
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`goods or services); Radiance Found., 786 F.3d at 327–30 (finding the use of the NAACP’s name
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`in an article title criticizing the organization’s stance on abortion not actionable).
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`Although many of these cases framed the inquiry into whether the defendant’s trademark
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`use was commercial, common to all these cases is the absence of the fact we find dispositive
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`here: that the defendant’s trademark use served a source identification, rather than expressive,
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`end. See, e.g., Utah Lighthouse Ministry, 527 F.3d at 1054 (“Unless there is a competing good
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`or service labeled or associated with the plaintiff’s trademark, the concerns of the Lanham Act
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`are not invoked.”); cf. McCarthy on Trademarks and Unfair Competition § 9:6 (5th ed. 2024)
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`No. 23-1856
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`Libertarian Nat’l Comm., Inc. v. Saliba, et al.
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`Page 11
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`(explaining that while § 43(a) contains a commercial activity requirement, the text of § 32(1)(a)
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`(15 U.S.C. § 1114) does not). These cases are accordingly inapposite here, where the Lanham
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`Act serves to prevent defendants from using the LNC’s mark in connection with advertising and
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`distributing their own political services as an entity affiliated with the LNC—not “in connection
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`with the expression of [their] opinion about” the services of the LNC. Bosley Med. Inst., 403
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`F.3d at 679; cf. Radiance Found., 786 F.3d at 327 (positing that a nonprofit’s use of a trademark
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`to further activities like donation solicitation may satisfy the Lanham Act’s “in connection with”
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`requirement if the trademark denotes the source of the donation recipient). Thus, we remain
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`convinced that the First Amendment tolerates the Lanham Act’s interjection to prevent use of a
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`trademark as a source identifier in a manner that creates confusion as to the source of the
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`defendant’s political services.4
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`B.
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`Having found that that the Lanham Act can constitutionally apply to defendants’ use of
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`the LNC’s mark, we next consider the other two elements of a Lanham Act claim: whether
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`defendants’ use was unauthorized and likely to cause confusion.
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`The Lanham Act prohibits the use of a trademark “without the consent of the registrant.”
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`15 U.S.C. § 1114(1). In the context of a franchisee-franchisor relationship, courts have found
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`that the plaintiff-franchisor must demonstrate that it properly terminated any license held by the
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`defendant-franchisee to use the plaintiff’s trademarks to support a finding that the defendant’s
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`use was truly unauthorized. See, e.g., McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1308
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`(11th Cir. 1998). Here, defendants argue that they have a right to use the LNC’s trademark as
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`the Michigan affiliate through the licensing regime set out in the party’s bylaws. Since the LNC
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`did not follow the procedure set out in its bylaws to revoke the Michigan affiliate’s license,
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`4In finding this application of the Lanham Act in harmony with the First Amendment, we reject
`defendants’ argument that the injunction here presents an unlawful prior restraint on speech. While defendants
`describe the injunction as sweeping in any criticism of the LNC or Libertarian Party of Michigan, that is simply not
`the case. The district court clarified that the injunction merely prohibits defendants from identifying as the
`Libertarian Party of Michigan in the provision of services, it does not prevent them from identifying as members of
`the Libertarian Party or the Michigan affiliate, or from using the trademark to criticize or comment on either entity.
`We emphasize again that the Lanham Act does not restrict defendants’ ability to engage in political speech. It
`merely restricts defendants from using the LNC’s trademark to identify as the Libertarian Party of Michigan in
`connection with providing or advertising their own political services.
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`
`
`

`

`No. 23-1856
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`Libertarian Nat’l Comm., Inc. v. Saliba, et al.
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`Page 12
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`
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`defendants argue that the license renders the LNC unable to show that defendants’ continued use
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`was unauthorized. See id.; see also Re/Max North Cent., Inc. v. Cook, 272 F.3d 424, 430 (7th
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`Cir. 2001); Little Caesar Enter., Inc. v. Miramar Quick Serv. Rest. Corp., No. 19-1860, 2020 WL
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`4516289, at *3 (6th Cir. June 25, 2020). We find this argument unavailing.
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`Contrary to defendants’ argument, the LNC did not have to show that it disaffiliated the
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`Libertarian Party of Michigan to show that defendants’ continued trademark use was
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`unauthorized. The issue in this case is not whether the Michigan affiliate still possesses a license
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`to use the LNC’s trademark. It does. The LNC still recognizes a faction as the Libertarian Party
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`of Michigan and allows the organization it recognizes to use the LNC’s trademarks to identify
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`itself. The LNC alleges that it notified defendants that they lack a license to use the LNC’s
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`trademark to speak as the Michigan affiliate precisely because the LNC does not recognize them
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`as the licensed affiliate’s leadership. See DE 12-7, Libertarian Party Bylaws, Page ID 454
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`(“There shall be no more than one state-level affiliate party in any one state.”).
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`Whether the LNC’s recognition of Chadderdon’s group as the affiliate leadership is right
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`or wrong, the cease-and-desist order conveying such recognition is sufficient to establish that
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`defendants’ continued use was unauthorized. Defendants, as individual members of the
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`Michigan affiliate, do not possess a contractual right to use the trademarks to speak as the
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`Michigan affiliate. Concluding otherwise would require that this panel find that the Judicial
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`Committee’s decision reinstating the Chadderdon-led team into their leadership roles was
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`improper, that the LNC’s recognition of the Chadderdon faction as the real Michigan affiliate
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`was wrong, and that defendants are the rightful Michigan affiliate leadership. Resolution of
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`these issues is outside the scope of this case, and, in any event, would pose serious justiciability
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`concerns. See Heitmanis v. Austin, 899 F.2d 521, 525 (6th Cir. 1990) (explaining courts’ history
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`of “reluctan[ce] to intervene in intra-party disputes”).
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`C.
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`To succeed on its infringement claims, the LNC must lastly show that defendants used
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`the trademark in a manner likely to cause confusion to consumers about the source of
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`defendants’ goods or services. See 15 U.S.C. § 1114(1)(a); Taubman, 319 F.3d at 776. For the
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`
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`

`

`No. 23-1856
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`Libertarian Nat’l Comm., Inc. v. Saliba, et al.
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`Page 13
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`
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`following reasons, we find that defendants’ use of the trademark in the provision of political
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`services (for example, the maintenance of a website containing political platforms, endorsing
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`candidates, and filing campaign finance reports) creates a sufficient likelihood of confusion, but
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`that defendants’ use of the mark in connection with online solicitation, when accompanied by an
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`appropriate disclaimer, does not.
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`“If different organizations were permitted to employ the same trade name in endorsing
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`candidates, voters would be unable to derive any significance from an endorsement, as they
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`would not know whether the endorsement came from the organization whose objectives they
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`shared or from another organization using the same name.” United We Stand America, 128 F.3d
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`at 90. Thus, we agree with the district court that defendants’ use of the LNC’s trademark in
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`connection with the provision of competing political services created a high likelihood of
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`confusion for consumers, i.e., potential voters, party members, and, in the case of solicitations
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`not accompanied by a clear disclaimer, donors. See All. for Good Gov’t v. Coal. for Better
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`Gov’t, 901 F.3d 498, 511 (5th Cir. 2018) (deeming voters who rely on political coalitions’
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`endorsements the relevant “purchasers” of political services for assessing the confusion created
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`by one coalition’s use of a similar mark).
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`Defendants’ use of the “Libertarian Party” mark meant t