You’re Fired, America. - Fordham Intellectual Property, Media & Entertainment Law Journal
22419
post-template-default,single,single-post,postid-22419,single-format-standard,ajax_fade,page_not_loaded,,select-theme-ver-3.3,wpb-js-composer js-comp-ver-4.12,vc_responsive
 

You’re Fired, America.

You’re Fired, America.

There is no denying Donald Trump is a successful businessman; some may even agree with him when he modestly claims he has King Midas’ golden touch.1

However, Mr. Trump’s strategic and corporate-wired brain may have met its match in the political arena. Since his presidential announcement speech in June, Mr. Trump has been adamant about protecting his2 token slogan, “Make America Great Again.”3 In fact, Mr. Trump has begun the trademarking process to safeguard his political motto from being printed on clothing and other political memorabilia without his permission.4 Although Mr. Trump is not the first (potential) politician to use trademark protection (the Obama campaign trademarked the famous “O” symbolizing a rising sun and a new day5), he is one of the few to register a slogan and the first to register one that uses the geographical term “America.”6

The requirements for trademarking slogans that include geographical terms are two fold. First, they must be “distinctive, not merely informational, generic or laudatory.”7 Second, they must also prove that they have acquired a secondary meaning.8 A slogan is thought to have acquired such meaning if the brand owner can demonstrate that its use by another party would “cause confusion amongst consumers as to the producer or provider of the goods or servicers.”9 Thus, under United States trademark law, many common phrases such as “Proudly Made in the USA” cannot be trademarked unless they have acquired a secondary meaning (think Nike “Just Do it”, KFC “Finger Lickin’ Good,” etc.).10

Unlike Trump’s failed attempts to trademark phrases such as “you’re fired,” “trumpublican,” and “Trump for President,”11 according to trademark experts it seems likely that “Make America Great Again” is distinct enough to warrant a trademark12 – despite the irony that President Reagan first used the slogan in his 1980 campaign and Mr. Trump merely copied it.13 The phrase has acquired secondary meaning in the marketplace as a result of advertising and continued usage throughout Mr. Trump’s campaign. A simple Instagram or Twitter hashtag search of “#makeamericagreatagain is almost always followed by #Trump2016. However, a question remains: should Mr. Trump actively seek to enforce the trademark?

It should be telling to Mr. Trump that hardly any political mottos have been trademarked – and those that have, have been predominately symbols, not phrases.14 Despite this fact, Mr. Trump’s legal team has targeted online sellers such as Etsy.com and CafePress.com in order to halt knockoffs from being sold.15 Although Mr. Trump’s action to trademark his slogan reflects his need to protect his brand (a wise business decision), he may be harming himself long-term in the political arena.

It seems counterintuitive to protect a slogan in politics. The reason campaigns spend copious amounts of money devising clever catchphrases to convey their party’s and/or their leader’s mission is purely for marketing purposes to create brand awareness. By holding this trademark, Mr. Trump is seriously limiting both his marketing and branding powers, as he is subjugating his collateral to be manufactured at a premium price, which subsequently could deter a large portion of the population from purchasing said merchandise. For example, although certain people may find his slogan catchy, they may not want to spend $30 for a hat or t-shirt from the official “Trump for President” website16 vs. purchasing a similar item at a lower price from a different seller. If Mr. Trump were to consider the masses, he may ultimately create more awareness for his campaign by enabling additional sellers to offer his merchandise for purchase.17 It seems unlikely that the billionaire, self-funded Mr. Trump is going after online retailers because of their competing prices and his need for more funds. Although the businessman inside of him may want to protect his brand, many may start to wonder whether Mr. Trump is using politics to take economic advantage of his own supporters18 despite having “no need”19 for other people’s contributions. Having no business background myself, it nevertheless seems obvious that continuing this strategy would be unwise on both the business and the political fronts.

Mr. Trump should perhaps re-think his political strategy in enforcing his trademark (provided that he receives it) because as history has shown us, the Midas touch can bring about devastating consequences.

 

Image: Imgur


  1. Barnes & Noblehttp://www.barnesandnoble.com/w/midas-touch-donald-j-trump/1101365510?ean=9781612680958 [http://perma.cc/X5U2-2P9R] (last visited Oct. 22, 2015).

  2. Many people are not aware that “Make America Great Again” was actually Ronald Reagan’s campaign slogan in 1980.

  3. Josh H. Escovedo, Does Trump Own “Make America Great Again?”, The IP Law Blog (Oct. 16, 2015), http://www.theiplawblog.com/2015/10/articles/trademark-law/does-trump-own-make-america-great-again/ [http://perma.cc/TD9L-3V52].

  4. Mr. Trump applied for and attained a trademark for the phrase in November 2012 but that registration only covered election-related services such as “promoting public awareness of political issues.” See Enrico Bonadio, How Donald Trump trademarked the slogan ‘Make America Great Again’, RawStory (Oct. 15, 2015), http://www.rawstory.com/2015/10/how-donald-trump-trademarked-the-slogan-make-america-great-again/ [http://perma.cc/8HPS-5X5W].

  5. Josh H. Escovedo, Does Trump Own “Make America Great Again?”, The IP Law Blog (Oct. 16, 2015), http://www.theiplawblog.com/2015/10/articles/trademark-law/does-trump-own-make-america-great-again/ [http://perma.cc/TD9L-3V52].

  6. See Josh H. Escovedo, Does Trump Own “Make America Great Again?”, The IP Law Blog (Oct. 16, 2015), http://www.theiplawblog.com/2015/10/articles/trademark-law/does-trump-own-make-america-great-again/ [http://perma.cc/TD9L-3V52]; David Martosko, EXCLUSIVE: Trump trademarked slogan ‘Make America Great Again’ just DAYS after the 2012 election and says Ted Cruz has agreed not to use it again after Scott Walker booms it TWICE in speech, Daily Mail (May 12, 2015), http://www.dailymail.co.uk/news/article-3077773/Trump-trademarked-slogan-Make-America-Great-just-DAYS-2012-election-says-Ted-Cruz-agreed-not-use-Scott-Walker-booms-TWICE-speech.html [http://perma.cc/HF5N-Y8UV].

  7. Enrico Bonadio, How Donald Trump trademarked the slogan ‘Make America Great Again’, RawStory (Oct. 15, 2015), http://www.rawstory.com/2015/10/how-donald-trump-trademarked-the-slogan-make-america-great-again/ [http://perma.cc/8HPS-5X5W].

  8. Enrico Bonadio, How Donald Trump trademarked the slogan ‘Make America Great Again’, RawStory (Oct. 15, 2015), http://www.rawstory.com/2015/10/how-donald-trump-trademarked-the-slogan-make-america-great-again/ [http://perma.cc/8HPS-5X5W].

  9. Enrico Bonadio, How Donald Trump trademarked the slogan ‘Make America Great Again’, RawStory (Oct. 15, 2015), http://www.rawstory.com/2015/10/how-donald-trump-trademarked-the-slogan-make-america-great-again/ [http://perma.cc/8HPS-5X5W].

  10. Enrico Bonadio, How Donald Trump trademarked the slogan ‘Make America Great Again’, RawStory (Oct. 15, 2015), http://www.rawstory.com/2015/10/how-donald-trump-trademarked-the-slogan-make-america-great-again/ [http://perma.cc/8HPS-5X5W].

  11. Jacob Gershman, From Steaks to Fragrances, the Donald’s Trademarks Trump Them All, The Wall Street Journal (Aug. 5, 2015), http://blogs.wsj.com/law/2015/08/05/from-steaks-to-fragrances-the-donalds-trademarks-trump-them-all/ [http://perma.cc/DPP5-3NGJ]; Dale Buss, Branding Donald Trump: Trademark Spree Keeps His Lawyers Busy, brandchannel (Aug. 7, 2015), http://brandchannel.com/2015/08/07/donald-trump-brand-080715/ [http://perma.cc/XBH2-7WAM].

  12. Josh H. Escovedo, Does Trump Own “Make America Great Again?”, The IP Law Blog (Oct. 16, 2015), http://www.theiplawblog.com/2015/10/articles/trademark-law/does-trump-own-make-america-great-again/ [http://perma.cc/TD9L-3V52].

  13. Colin Campbell, Donald Trump trademarked a Ronald Reagan slogan and would like to stop other Republicans from using it, Business Insider (May 12, 2015, 3:21 PM), http://www.businessinsider.com/donald-trump-trademarked-make-america-great-again-2015-5 [http://perma.cc/Q2RH-VXS3].

  14. Josh H. Escovedo, Does Trump Own “Make America Great Again?”, The IP Law Blog (Oct. 16, 2015), http://www.theiplawblog.com/2015/10/articles/trademark-law/does-trump-own-make-america-great-again/ [http://perma.cc/TD9L-3V52].

  15. Heather Long, Donald Trump trademarks ‘Make America Great Again’, CNN Money (Oct. 8, 2015, 10:34 AM), http://money.cnn.com/2015/10/08/investing/donald-trump-make-america-great-again-trademark/ [http://perma.cc/ZL39-NUUB].

  16. Make America Great Again! | Donald J Trump for Presidenthttp://shop.donaldjtrump.com/category-s/111.htm?searching=Y&sort=2&cat=111&show=30&page=1 [http://perma.cc/WWP3-K4J9] (last visited Oct. 22, 2015).

  17. The way I see it, and the way I think Mr. Trump has been running his campaign, is the more publicity, the better.

  18. Enrico Bonadio, How Donald Trump trademarked the slogan ‘Make America Great Again’, RawStory (Oct. 15, 2015), http://www.rawstory.com/2015/10/how-donald-trump-trademarked-the-slogan-make-america-great-again/ [http://perma.cc/8HPS-5X5W].

  19. Alex Swoyer, Trump On Campaign Funding To Howie Carr, ‘I’Ll Spend Whatever I Have To Spend’, Breitbart News Network (June 23, 2015), http://www.breitbart.com/big-government/2015/06/23/trump-on-campaign-funding-to-howie-carr-ill-spend-whatever-i-have-to-spend/ [http://perma.cc/HK2Z-C6K6].

Vanessa Diamataris

Vanessa Diamataris is a second-year law student at Fordham University School of Law a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal.