Judge tosses former gubernatorial candidate's trademark suit over 'proven problem solver' slogan

A federal judge has tossed Democratic donor and former gubernatorial hopeful Stephen J. Cloobeck's trademark lawsuit against rival candidate Antonio R. Villaraigosa, ruling that the phrase "proven problem solver" is generic political language that cannot be monopolized by any one candidate.

The dispute arose from the 2026 California gubernatorial race, where both men were candidates. Cloobeck, a billionaire who made his money in real estate and hospitality, alleged that he began using the slogan "I am a proven problem solver" in March 2024 and sought to protect it as a trademark, filing an application with the U.S. Patent and Trademark Office.

Months later, Villaraigosa, the former mayor of Los Angeles and speaker of the California Assembly, began using the phrase "proven problem solver" in his own campaign materials, prompting Cloobeck to send a cease-and-desist letter and then file suit for federal trademark infringement and unfair competition under the Lanham Act.

"We appreciate Judge Birotte's thorough decision, which confirms that a candidate for political office can't limit an opponent's speech in an attempt to gain tactical advantage," Eric M. George of Ellis George LLP said in a statement.

"How someone faces a lawsuit can be a great revealer of character. Here, despite being sued by a wealthy bully, and all that can entail, Mayor Villaraigosa was principled and courageous. He said he wouldn't buckle - and he didn't," George said.

Lawrence M. Hadley, chair of the Intellectual Property department at Glaser Weil Fink Howard Jordan & Shapiro LLP, represents Cloobeck. "We think the opinion makes clear that the case raises questions that Ninth Circuit has not resolved and we plan to appeal," he said.

In Monday's order, U.S. District Judge André Birotte Jr. granted Villaraigosa's motion for judgment on the pleadings. The judge dismissed Cloobeck's case with prejudice and denied leave to amend. Cloobeck v. Villaraigosa et al., 25-cv-03790 (C.D. Cal., filed April 29, 2025).

Birotte never reached the merits of any traditional likelihood-of-confusion analysis because he found the Lanham Act inapplicable to the political speech at issue. The judge emphasized that the statute is aimed at regulating commercial activity--protecting consumers from confusion in the marketplace of goods and services--not refereeing campaign rhetoric in "the market place of ideas and opinions."

While acknowledging that some courts have applied the Lanham Act in political contexts, including the 2nd U.S. Circuit Court of Appeals' United We Stand decision and the Central District of California's Browne v. McCain ruling, Birotte distinguished those cases.

After Ross Perot's 1992 presidential campaign, his supporters formed a national political advocacy group called United We Stand America Inc. When a New York-based political group began using the same name, the national organization sued for trademark infringement, claiming ownership of the name "United We Stand America." United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F.3d 86 (2d Cir. 1997).

Then in 2008, John McCain's presidential campaign used Jackson Browne's song "Running on Empty" in a political attack ad targeting Barack Obama -- without Browne's permission. Browne v. McCain, 611 F. Supp. 2d 1073 (C.D. Cal. 2009)

Birotte pointed out that in both of those cases, political organizations or campaigns were using marks in ways tied to services, fundraising, or sponsorship confusion. In Cloobeck's case, Villaraigosa was "merely an individual gubernatorial candidate" using a short phrase in core political messaging, not selling goods or services.

Even assuming the Lanham Act could reach such speech, Birotte held that Cloobeck's complaint failed to plausibly allege any likelihood of confusion.

Voters, the judge reasoned, plainly understand that Cloobeck and Villaraigosa are competing candidates with their own websites, social media, and public campaigns. The complaint did not allege misdirected donations, mistaken identity, or any concrete evidence of confusion--only a theoretical overlap in language.

Birotte went further, describing "proven problem solver" as a "descriptive, generic" phrase that captures a universally desirable political trait, not a distinctive source identifier.

The record, including Villaraigosa's compendium of past uses, showed that politicians have used the phrase for decades. Granting one candidate exclusive rights to those three words, Birotte warned, would risk chilling ordinary campaign speech and effectively give Cloobeck a monopoly over common political rhetoric.

The judge also expressed concern about the breadth of the relief Cloobeck sought, which would bar Villaraigosa and those acting with him from using any "confusingly similar" mark -- potentially sweeping in even more basic variations like "problem solver."

Cloobeck dropped out of the governor's race last month and endorsed U.S. Rep. Eric Swalwell.