“Keep America Great” Hats? President Trump Is Planning On it!
23735
post-template-default,single,single-post,postid-23735,single-format-standard,ajax_fade,page_not_loaded,,select-theme-ver-3.3,wpb-js-composer js-comp-ver-4.12,vc_responsive
 

“Keep America Great” Hats Four Years From Now? President Trump Is Planning On it!

“Keep America Great” Hats Four Years From Now? President Trump Is Planning On it!

It was unavoidable.  The ambiguous promise of President Trump’s campaign, “Make America Great Again,” was plastered on billboards and lawn signs, and worn on hats across the country for the duration of the 2016 presidential race.  It was an easy slogan to remember, and vague enough for individuals to morph into whatever they wanted it to mean, and in doing so perhaps contributed to Donald Trump’s unprecedented victory.  If it was so effective, why was it not used by other politicians as well?  The answer is trademark law.  Within two weeks of President Obama’s re-election victory over Mitt Romney in 2012, Donald Trump filed a trademark application for the slogan, “Make America Great Again.”1 When other politicians such as Ted Cruz attempted to use the phrase in their own campaigns, they were hit with cease and desist letters from Trump’s camp.2 Apparently, Donald Trump is the only one who can “Make America Great Again.”

But can President Trump keep America great?  Not surprisingly, he is planning to use that as his slogan for a re-election campaign in 2020.  On Wednesday, January 18, 2017 Donald J. Trump For President Inc., filed a U.S. federal trademark registration for the phrase “Keep America Great.”3 The current status of the application is New Application Filed, and the description provided to the USPTO is for “bumper stickers, decorative decals for vehicle windows, stickers, advertising signs of papers, advertising signs or cardboard, placards and banners of paper or cardboard, printed publications, namely pamphlets providing information regarding Donald J. Trump as a political candidate.”4

However, President Trump may want to wait a bit before producing the campaign hats.  A recent trademark application in 2016 for the phrase “Keep America Great” was rejected by the trademark examiner for “failure to function.”5 The reasoning for the rejection was that “the applied-for mark merely conveys an informational social, political, religious, or similar kind of message; it does not function as a trademark to indicate the source of the applicant’s goods and to identify and distinguish them from others.”6 Despite this statement, it was also explained that, “the applicant’s slogan is commonly used as a counter to the “Make America Great Again” phrase, and thus functions to advocate for openness and inclusiveness, among other things.”7 Since the phrase “Make America Great Again” has become so widespread, the public would likely not view the phrase “Keep America Great” as source identifying of the applicant in this case.8

President Trump likely will have a strong argument to overcome this obstacle, as the public would tend to think of President Trump when they hear the phrase “Keep America Great.”  This would be a strong argument for source identification, and would weigh towards the phrase being registrable as a trademark.  It will be interesting to see if this trademark is indeed issued, but opponents of President Trump should not hold their breath.  It seems likely we will be seeing this new slogan on campaign hats four years from now.

 

Ryan Babcock

Ryan Babcock is a second year student at Fordham University School of Law and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal. He has a B.S. in Biochemistry from Villanova University.