He may be running for President most bombastically, but that doesn’t mean he doesn’t know how to protect his intellectual property. Several years ago – back in 2010 – Donald Trump registered his now almost-famous slogan “Make America Great Again” as a trademark with the U.S. Patent and Trademark Office (“PTO”).
But like all trademark registrations, Trump had to specify the particular goods or services that he uses this trademark on or in connection with. In other words, no one can register a trademark in a vacuum for all goods and services across the board. Specificity is required.
Trump registered “Make America Great Again” for the following services: “Political action committee services, namely, promoting public awareness of political issues”; and “fundraising in the field of politics”. In recent weeks we have heard more than once in national newscasts that Trump has “ trademarked” and “copyrighted” the phrase “Make America Great Again”. The suggestion that he has “trademarked” the phrase is pretty close to accurate. Technically speaking, what he has actually done is registered “Make America Great Again“ as a trademark for the services noted above.
But the broadcasters who have stated that he has “copyrighted” the phrase have made a very common mistake of interchanging the term “trademark” and “copyright”. But trademarks protect names, slogans and logos; copyrights protect content like books, screenplays, movies and computer program. The net effect is that Trump would have a good /solid legal claim against anyone else who attempts to use the same or similar slogan for the same or similar services.
Where this gets interesting is that earlier this month – in fact a day before the Republican presidential debate on Fox News – two individuals named Bobby Estell and Meri Barnes filed a new trademark application for the same exact phrase to cover the a wide variety of apparel, bags, etc. including: “All-purpose athletic bags; All-purpose carrying bags; Backpacks; Beach bags; Book bags; Carry-all bags; Change purses; Clutches; Coin purses; Dog apparel; Duffel bags; Garment bags for travel; Handbags; Key cases; Pet clothing; Purses and wallets; School bags; Small backpacks; Travel bags; Footwear; Hats; Jackets; Pants; Shirts; Short-sleeved or long-sleeved t-shirts; Shorts; Socks; Sweat shirts; Swim wear”.
Then, a week after Estell and Barnes filed their trademark application, Trump filed two new U.S. trademark applications to cover virtually the same goods/products that Estell and Barnes filed for.
For all of us who are involved in trademark matters, this is bound to get even more interesting when these competing trademark applications get some attention from the PTO in about December; it usually takes the PTO three to four months to review a trademark application after it is filed. Therefore, things are bound to heat up when the PTO Examiner who is assigned to the Estell and Barnes application for “Make America Great Again” reviews it. At that point the Examiner will run a search of potentially confusing trademark applications and registrations. Undoubtedly the Examiner will find Trump’s existing trademark registration for “Make America Great Again” for political action committee services, namely, promoting public awareness of political issues and for fundraising in the field of politics.
The Examiner will then have to decide if the Estell/Barnes goods conflict with the services specified in Trump’s trademark registration for political action committee services, etc. We think there is at least a 50/50 chance that the Examiner will NOT find a conflict with the services specified in Trump’s registration. This is because bags, clothing and other merchandise/products are relatively different from Trump’s political and fundraising services
If the Examiner approves the Estell/Barnes trademark application, it will then be published in a government publication known as the Official Gazette. Anyone – including Trump – who objects to this application will have 30 days after the date of publication to file an Opposition to the Estell/Barnes trademark application.
The other piece of the chess match that is going to play out is that the two trademark applications recently filed by Trump for bags, clothing, etc. will be rejected by the PTO Examiner in charge of those applications because the Estell/Barnes application pre-dates Trump’s applications by 8 days. If Trump’s lawyers aren’t already aware of the Estell/Barnes application, they will be alerted to it when the PTO rejects Trump’s two recent trademark applications.
Our best guestimate is that Trump’s lawyers are watching all of the trademark filings that might conflict with any of Trump’s registrations and there is a very high likelihood that Trump will oppose the Estell/Barnes trademark application. Although we believe – technically and legally speaking – that Estell/Barnes could have a solid legal ground to claim that their application for this slogan for merchandise is different enough from the services Trump’s trademark registration covers, it is highly likely that Trump will simply outspend them during the Opposition phase and will force them to either drop their trademark application or sign it over to Trump.
Since we are more than a year away from the presidential election in 2016 and it certainly appears that Trump will continue to use this slogan repeatedly to identify his campaign and his “promise” to the American people, we will follow the saga of these trademark applications for “Make America Great Again” and report back what happens. Stay tuned!