Former President Donald J. Trump and his children are no strangers to branding the family name for profit. In his post-presidential days, the value of the Trump name remains to be seen, but he has wasted no time testing the waters with political branding. It has been widely anticipated that Trump will launch his own media company to compete with Fox News and other right-wing media outlets. Moreover, days after the Inauguration, Trump suggested plans to form his own political party, though the details are still uncertain. Reports vary as to whether the name will be the PATRIOT PARTY or MAGA PARTY. Here we take a look at the trademark challenges Trump may face in the political arena.
While a trademark registration is not essential to use, given Trump’s history, it is more likely he will choose a name that gives him exclusive rights and positions him to preclude others from profiting from ancillary products and services. A strong argument can be made that at least three prior registrations would preempt or at least pose a barrier to registration by Trump (or an individual or organization filing on his behalf) of either the Patriot Party or the MAGA Party.
There are two live trademarks for PATRIOT PARTY, both registered to an individual in Winter Springs, Florida. The first is a collective membership mark for “membership in an organization and association of like-minded, politically oriented Americans,” and the second is for “political party services, namely, promoting the interests of a political organization.” Both registrations cite a first use date over 20 years ago – April 4, 2000 – and the marks were registered on January 28, 2020.
Notwithstanding these preexisting registrations, three third parties filed competing applications for THE PATRIOT PARTY for political party services and hats and T-shirts etc. in the last month. For a further discussion of how applications are filed solely for the purpose of attempting to profit from the sale of the trademarks, see our recent articles on the Washington Football Team and 2020 Intellectual Property Legislation Overview.
Days after President Joe Biden won the 2020 election, an application for MAGA PARTY was filed for political party services by Norman Pardo of Land O’Lakes, Florida. If that name is familiar, it is because he was OJ Simpson’s former manager and produced a documentary about the Nicole Simpson murder, among other things. The application claims a first use date of November 19, 2020.
Complicating matters further, on January 25, 2021, the Federal Election Commission received a statement of organization for the "MAGA Patriot Party National Committee." Notwithstanding a reference to the Trump organization in the filing, the official Donald J. Trump for President (DJTFP) organization filed an official disavowal of the filing later the same day:
DJTFP did not authorize the filing of this Form 1, has not entered into any joint fundraising agreement to fundraise through MAGA Patriot Party National Committee, and has no knowledge of MAGA Patriot Party National Committee's activities whatsoever. To be clear: DJTFP has no affiliation with MAGA Patriot Party National Committee, which is not authorized by Mr. Trump or DJTFP.
To date no trademark applications have been filed for MAGA PATRIOT PARTY, but as we often say, “stay tuned.”
Trump’s plans to enter the news media business, also the subject of speculation, may be in addition to or in lieu of Trump’s further political aspirations. (A discussion of the ethical and legal implications of pursuing such a two-pronged approach are outside the scope of this article.) On January 20, 2021, an intent-to-use application was filed for the TRUMP NEWS NETWORK to provide “news in the nature of current event reporting; providing current event news via a global computer network; news reporter services in the nature of news analysis and news commentary; providing an internet news portal featuring links to news stories and articles in the field of current events.” There is no indication on the face of the application that Trump has any association with the filing. Curiously, DTTM Operations, Trump’s business enterprise, had a registration for the TRUMP NETWORK for meal replacements, dietary supplements, breakfast cereals, snack foods, etc. registered in 2011, but the mark was cancelled on January 17, 2019. While this prior registration might be raised tangentially, the stronger argument is found in 15 U.S. Code §1052 (c), which prohibits a registration that “consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.” Additionally, as with any other trademark application, the name of the person must not present a likelihood of confusion. Given the global recognition of the Trump name and brand, it would certainly be a low threshold for the Trump organization to meet.
Another potential name for a Trump media venture is MAGA NEWS NETWORK. Once again, a registration already exists for this trademark for “entertainment services, namely, providing a website that displays trending news and information content in the fields of current events and entertainment; non-downloadable newsletters delivered via the internet in the field of current events; providing a website for entertainment purposes where users can view and comment on information about current events, post stories, articles, videos and commentary about current events.” The trademark was registered February 20, 2018 to a Michigan LLC and lists a first use date of March 14, 2017.
Trump would certainly have the option to negotiate the acquisition of these trademarks should they be critical to his vision, but it would likely be a seller’s market.
Make America Great Again and MAGA
The Donald J. Trump for President, Inc. Non-Profit Corporation holds four registrations for MAKE AMERICA GREAT AGAIN. The first intent-to-use application was filed on behalf of Trump personally on November 19, 2012, days after Mitt Romney lost the election to Barack Obama, for election-related services, such as “promoting public awareness of political issues.” This application, along with registrations for various other products and services across eight trademark classes encompassing retail and online stores, fundraising, bumper stickers, campaign buttons, blogs, websites and social networking services as well as various types of bags and articles of clothing, including the ubiquitous red hats, were subsequently added to the portfolio of the non-profit corporation.
At least for now third parties hold registrations for MAKE AMERICA GREAT AGAIN for collectible and commemorative coins (registered September 2019) and lighters for smokers (registered August 2017), although the Trump team has been aggressive in pursuing others who attempt to profit from the slogan.
Corporate slogans traditionally have significant hurdles to overcome to achieve trademark registration status. Trump is one of a few, if not the only, political candidate to attempt to trademark a campaign slogan. The application went through the examination process without any issue of inherent distinctiveness being raised, even though a virtually identical slogan, "Let's make America great again," was used by Ronald Reagan in his 1980 presidential campaign. Additionally, Trump’s filing was an intent-to-use application, which on its face is a strong indication that the slogan had not acquired secondary meaning at the time it was filed, or even before it was registered on July 14, 2015, just weeks after Trump announced his run for the Presidency.
There are no Trump-related trademark filings for the acronym MAGA. According to the Trademark Manual of Examining Procedure (TMEP) §1209.03(h):
…an acronym or initialism cannot be considered descriptive unless the wording it stands for is merely descriptive of the goods or services, and the acronym or initialism is readily understood by relevant purchasers to be "substantially synonymous" with the merely descriptive wording it represents… A mark consisting of an abbreviation, initialism, or acronym will be considered substantially synonymous with descriptive wording if: (1) the applied-for mark is an abbreviation, initialism, or acronym for specific wording; (2) the specific wording is merely descriptive of applicant’s goods and/or services; and (3) a relevant consumer viewing the abbreviation, initialism, or acronym in connection with applicant’s goods and/or services will recognize it as an abbreviation, initialism, or acronym of the merely descriptive wording that it represents. See In re Thomas Nelson, Inc., 97 USPQ2d at 1715-16 (citing In re Harco Corp., 220 USPQ 1075, 1076 (TTAB 1984)).
It is not unreasonable to anticipate that at some point the Trump team will determine that there is sufficient secondary meaning associated with MAGA apart from Make American Great Again to attempt registration. In the meantime, there is a third party registration for MAGA COALITION for a political action committee and political fundraising. Finally, also on the horizon is a June 18, 2019 application filed by the non-profit for KEEP AMERICA GREAT. The non-profit was granted an Intent to Use (ITU) extension on December 15, 2020, a month after Trump’s 2020 loss.
In addition to these potential trademarks, Trump faces other trademark issues pertinent to the political arena. Lutzker & Lutzker has previously written about the TELERALLY trademark application filed by DTTM Operations for organizing events in the field of politics and political campaigning, discussing the challenges the mark might face in securing a registration. Since then, the assigned Trademark Examiner has issued a non-final office action. As we anticipated, the application was refused on the grounds that TELERALLY is “merely descriptive” of a feature or characteristic of the applicant’s services. Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); see TMEP §§1209.01(b), 1209.03 et seq. Additionally, he referred to the Merriam-Webster Dictionary:
[The Dictionary] defines ‘tele-’ as ‘distant: at a distance: over a distance … ‘Rally’ is defined as ‘a mass meeting intended to arouse group enthusiasm.’ … When used in connection with the identified services, ‘tele-rally’ is merely descriptive of political events in the nature of mass meetings intended to arouse group enthusiasm that can be attended at or over a distance. The mark immediately describes a feature or characteristic of the services. Also, the combination of descriptive terms does not create a unique, incongruous, or nondescriptive meaning in relation to the services.
The office action also cited as evidence several articles from newspapers and websites. One such article from The Hill is titled “Amid concerns over coronavirus, Trump turns to 'tele-rallies' to drive support.” Another article from the website WAOW.com is entitled “Trump campaign to begin telephonic rallies.” The article goes on to state: “[o]n Saturday, the president held his first ever ‘tele-rally’ and directed it to voters in Wisconsin….” The Examiner asked for responses to the following five questions:
- Does applicant organize events in the nature of rallies?
- Are applicant’s services provided by telephonic or telecommunications means?
- Can people attend applicant’s events in the field of politics and political campaigning remotely?
- Do applicant’s competitors use “tele-rally” or “telerally” to advertise similar goods and/or services?
- Who is the typical consumer of applicant’s services?
It appears that an affirmative answer to any of these questions would add further support to the descriptiveness argument. The Examiner also requested additional documentation as to how the mark would be used or how the applicant’s products or services would differ from similar documentation for other goods and service of the same type. Two technical issues, focusing on the overlap in the description of services with two trademark classes, must also be addressed. As with any applicant, the Trump organization has the opportunity to respond to the Examiner’s arguments within six months of the office action.
Other Third Party Registrations
Numerous Trump-related applications have been filed by third parties, again with no obvious affiliation with the Trump organization. (As a word of caution, there always exists the possibility that some of these applications are filed by strawmen, to avoid any overt connection to the Trump organization.)
Some applications have been filed by supporters of the former president, such as Women for Trump, while others are filed by his detractors. Other applications raise interesting concerns such as .45 MAGA for ammunition, clearly a play on the 45th President’s Make America Great Again (MAGA) slogan. A fourth category, as discussed above, includes those who wish to cash in on a trademark by preemptively filing an application in the hopes that the Trump organization might purchase the trademark from them.
Proposed Naming Legislation
On January 7, 2021, Joaquin Castro (D-TX, 20th District) announced that he would introduce legislation that would prevent any federal buildings or property from ever being named after Trump. It is unlikely that this legislation will ever become law, but it is certainly an unprecedented issue to be debated with or without a formal legislative ban.
This legislation would not apply to state-owned land, and there is in fact already a Donald J. Trump State Park in New York. The park is euphemistically called a “passive park” because it has no trails, picnic tables or other amenities, and little, if any, maintenance has been done at the park, according to Time Magazine. Trump originally bought the 282 acres in 1998 for two planned golf courses. The county rejected the plan and a subsequent effort to sell the property for residential housing also failed, largely due to environmental impact issues. In 2006, after negotiations with the New York State Department of Parks, Recreation and Historic Preservation, Trump donated the land with the agreement that it would be named Trump Park. Since 2015, multiple efforts have been made to rename the park, but to date none have been successful. For more background on the naming issue, please see our earlier article, What’s in a Rename: Public Spaces.
Trump's Trademark History in the U.S. and Internationally
As of this writing, there have been 124 applications filed and/or registered to DTTM Operations at the PTO. Of these, 72 remain live registrations. Many of these contain the Trump name and have become widely known for real estate services and to a lesser extent for a wide ranging assortment of consumer items.
Quantifying the number of international registrations is more challenging, but published reports suggest that Trump, his company and his family have applied for more than 1,000 trademarks since the late 1980s. Close to 200 of these have been filed since 2015, the year Trump announced his candidacy for the Presidency. A significant number of these applications were filed in China, and many were filed by Ivanka Trump Marks LLC. Much has been made of the speed with such applications were approved in China, as well as some of the other unusual Trump registrations internationally. However, international trademark law suggests the latter issue, including registrations for child care centers and voting machines, may be more straightforward than it appears in the headlines.
The first explanation is that China and most other countries, including the European Union countries, do not require use or even an intent to use a mark for particular goods or services to obtain a trademark registration. The U.S. is an outlier on this issue. This eliminates a barrier to international registration in two critical ways. First, it simply means that entrepreneurs and corporations can speculate in trademark applications with a low barrier to entry to keep options open for future ventures. Moreover, such broad registrations preclude potential competitors from using these marks. (Note, however, that at least in the European Union a third party can intervene to have a trademark expunged after five years of non-use.)
Perhaps even more noteworthy is the Nice Classification (NCL). The NCL, established by the 1957 Nice Agreement, is an international classification of goods and services applied to the registration of marks, including in the U.S. A new edition is published every five years and, since 2013, a new version of each edition is published annually. Some classes are intuitive, such as Class 25 — mainly for clothing, footwear and headwear. However, Class 9 includes mainly “apparatus and instruments for scientific or research purposes, audiovisual and information technology equipment, as well as safety and life-saving equipment.” Drilling down further, however, Class 9 also includes eyeglass and smart phone cases as well as voting machines. While there are some restrictions on how many products or services can be listed on a single application for one filing fee, this restriction is fairly broad. This is a more likely explanation as to why the Trump trademarks can be registered for innocuous goods as well as certain goods and services that legitimately raise eyebrows.
Lutzker & Lutzker will keep you posted on the continuing intersection of Trump’s branding efforts in the business and political arenas. As is often the case, the PTO filings can provide clues to future plans.