By: Josh Escovedo
As I frequently mention in my articles, trademark law is a much more prevalent part of the average person’s life than they realize. We are surrounded by the trademarks of numerous companies every time that we step outside, or even when we look around our own homes. However, we would not generally expect for trademark law to be inserted into a presidential campaign. At least, not until Donald Trump threw his hat in the ring.
Since Donald Trump has coined the campaign slogan “Make America Great Again,” he has been quite diligent about protecting his brand. Trump’s army of trademark attorneys have been aggressively threatening companies such as Café Press and an anti-Trump interest group with cease and desist letters ordering that they cease using the mark “Make America Great Again.” Although this is a shock to many of us who are not accustomed to seeing trademark law inserted into the political sphere, it should not come as too much of a surprise given Mr. Trump’s involvement. Donald Trump‘s acute understanding of the power of branding has significantly contributed to his net worth that allegedly exceeds $8.7 billion dollars. So his diligent brand protection is hardly out of character.
Trademark claims have been regularly made at the lower levels of politics, such as in campaigns for local offices, but they are rarely seen at the presidential level. Despite Mitt Romney’s use of numerous creative campaign logos and designs in the 2012 election, none of them were trademarked. To the contrary, Team Obama did not hesitate to trademark its campaign logo utilizing the Obama “O” which symbolized “a rising sun and a new day.” According to the creator of the mark, brand development and design company Sender LLC, “The Sun Rising over the horizon evoked a new sense of hope.” The Obama Campaign felt so strongly about this meaning that the logo was registered with the United States Patent and Trademark office as a trademark. Still this was another exceptional case.
Trump, however, is the first candidate to register a mark utilizing “America.” According to numerous trademark experts, Trump can establish that he has a right to the trademark “Make America Great Again” because the public now associates the mark with him. I tend to agree. What this is really saying is that “Make America Great Again” has acquired secondary meaning in the marketplace as a result of advertising or continued usage. Under United States trademark law, many common phrases cannot be trademarked unless they have acquired such secondary meaning. That certainly seems to be the case here given Trump’s repeated appearances in the red baseball hat bearing the mark. He has also repeatedly utilized the mark during his campaign speeches. The mark has become so commonly associated with Trump that when Tom Brady was seen wearing the hat in the locker room, rumors spread that he was a Trump supporter.
Certain trademark experts have compared Trump’s right to “Make America Great Again” to that of Coke to “It’s the real thing” or Nike to “Just do it.” Logically, allowing such protection makes sense because when the mark becomes so closely associated with a company or an individual there is a “likelihood of consumer confusion” if others are permitted to sell goods bearing the mark. As such, other companies could wrongfully benefit from the goodwill of the individual or company who owns the mark.
Based on this brief analysis, it seems that while Trump’s trademarking of the phrase “Make America Great Again” may be uncommon in the sphere of presidential politics, it is likely permitted under United States trademark law. It remains to be seen whether this business-like mentality will have any effect on Trump’s campaign, but it certainly did not seem to affect the 2008 or the 2012 Obama campaigns. Irrespective of how you feel about Mr. Trump’s political views, you have to admit, the man knows how to protect his brand.