STACY J GROSSMAN

TRUMPMARKS: The Latest Trend in Trademarks


by Stacy J Grossman and Adelaide Dunn,

 

The Trademark Office database is more than a helpful record of brands and businesses.  It is also a real-time reflection of cultural and political waves sweeping through America, since would-be entrepreneurs routinely apply to register trademarks in an effort to cash in on fads, memes, jokes, and current events.

Donald Trump has dominated the news since he announced his presidential bid in June of 2015.  Press coverage of him reached new heights this week, due to his performance in the first Presidential debate.  Similar to the influx of BREXIT trademark applications made in the wake of the UK’s referendum, the Trademark Office is now processing scores of applications for trademarks that include the word TRUMP.

Unfortunately for TRUMP opportunists, receiving a certificate of registration for a TRUMP-formative mark from the Trademark Office is just about impossible.  In fact, getting Mr. Trump’s tax returns may be easier.

What kind of TRUMP marks are people attempting to register, and what are the most common grounds for refusal?

In one camp are those who don’t think Trump will make America great again.  Applicants have attempted to register slogans such as DUMP TRUMP (for t-shirts and bumper stickers), JUST A TRUMP IN THE ROAD (for paper signs), TRUMPOCALYPSE (for clothing), GET THE TRUMP OUTTA HERE (for clothing), and SHUT THE TRUMP UP (for clothing).  One applicant even applied to register DUMPS FOR TRUMP for pet poop disposal bags. 

In the other camp are Trump supporters, who have applied to register such marks as WIN TRUMP WIN (for mugs), IN TRUMP WE TRUST (for clothing), GET YOUR TRUMP ON (for licensing), WE CAN TRUMP THIS (for clothing), TRUMP ME IN! (for bumper stickers), and TRUMPSINGLES.COM for a website that claims to “make dating great again."  The site is real -- you can’t make this stuff up!

Politics aside, most of these applications have received (or will receive) office actions from the Trademark Office, and most or all of these applications will be refused.

The most common ground for refusal is that a mark that includes TRUMP consists of or comprises a name, portrait or signature identifying Donald Trump, a living individual, without his consent.  This is a violation of the Trademark Act.  Related to this is a refusal on the ground that a TRUMP-formative mark may falsely suggest a connection with Donald Trump.

Applications that seek to register a TRUMP-formative mark for clothing or other merchandising items may also be refused on the ground that they are “merely ornamental.” As we’ve discussed before, the Trademark Office refuses to register slogans or phrases used on items such as t-shirts and sweatshirts, since consumers will perceive these slogans as conveying a message rather than indicating the source of the goods.

Finally, third party applications to register TRUMP-formative marks are being refused on the ground that they are confusingly similar to the marks that are owned by Trump himself. (A subsidiary of the Trump Organization owns 115 trademark registrations or pending applications for TRUMP and related marks).  While Trump may not have all the words, or all the best words, he can be braggadocious about his effective monopoly over TRUMP-formative marks. 

In all, the Trademark Office database includes 545 marks that include the word TRUMP.  Some are owned by the Trump Organization, some are owned by Ivanka Trump Marks LLC, and the rest were filed by third parties.  Since the start of 2015, nearly 100 TRUMP applications have been filed.  At $275 per trademark application, that’s about $27,500 in wasted filing fees.

The Trademark Office can easily build a wall between its database and this invasion of unregistrable TRUMP marks. However, with more TRUMP applications being made every day, the Trademark Office will continue to have its work cut out for it. 

Trump supporters and detractors would be well-advised to send their $275 to their favorite candidate, rather than to the Trademark Office.