Even as Donald Trump stumps for votes and kisses babies on the trail of the US presidential campaign, he’s clearly still a businessman at heart. And that means leaving no nifty (and potentially valuable) slogan un-trademarked.
In July, just a few weeks after he announced he was seeking the Republican nomination, he obtained a trademark for the campaign slogan “Make America Great Again”. Trump had applied for the mark all the way back in November 2012, immediately after Mitt Romney lost the election to Barack Obama.
The registration covers election-related services such as “promoting public awareness of political issues”. Yet, last August Trump filed another trademark application for the same slogan in connection with the right to put it on all manner of clothing from T-shirts to tank tops and hats.
Since the presidential candidate started wearing his red hat bearing the slogan, the product has become a must-have among his supporters. It can be bought in different colours for US$25 on official Trump-related websites.
Trump’s fans have, however, recently been offered alternative – and unauthorised – products. Replica versions of the hats bearing Trump’s slogan are sold by many for as little as US$4.99. And the tycoon-turned-politician has not waited long to protect his trademark and is currently going after the people behind these knock-offs.
One such seller is CafePress, a well-known popular website that allows its customers to print their own designs on T-shirts, coffee mugs and other products. Trump’s lawyer sent the company a warning letter just a few days ago, asking it to stop infringing the registered trademark.
But can you really trademark a slogan? And is it wise for a candidate asking for votes to also demand they pay up to don hats and shirts that bear it?
Distinctive not descriptive
Slogans are important elements in advertising campaigns as brand owners hope that consumers will link them with their products and services, as well as their main brand.
A number of attempts have been made in the past to register slogans as trademarks. But these attempts have often been unsuccessful and registrations have been refused because the slogans in question were devoid of distinctive character (distinctiveness is the main requirement to register all categories of signs).
Indeed, average consumers are often not in the habit of making assumptions about the origin of products on the basis of slogans, as they consider them as just advertising messages and therefore merely informational, generic or laudatory.
For example, slogans such as “Proudly Made in the USA” (in connection with electric shavers) and “America’s Freshest Ice Cream” (in relation to ice creams) were held unregistrable in the US for being just descriptive and so indistinguishable from other similar products.
When US multinational Best Buy tried to register the phrase “best buy” when written on price tags, an EU Court deemed it devoid of any distinctive character and refused the registration. Similarly, when Citigroup tried to trademark the slogan “Live richly” the court rejected it, as it was deemed that European consumers were perceive the phrase merely as promotional formula.
In order to overcome such objections, brand owners have to prove that the slogan they want to protect has acquired a “secondary meaning” on its own. 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 services. Famous examples of this category of slogans are KFC’s “Finger Lickin’ Good” and Nike’s “Just Do It”.
Does ‘Make America Great Again’ fit the bill?
Despite successfully registering “Make American Great Again”, Donald Trump may need to take on objections that his slogan is just descriptive and laudatory. Trademarks may be revoked even after registration, if judges or trademark offices later hold they do not meet requirements for protection and should have never been registered.
He might also be unable to prove that “Make America Great Again” has acquired a secondary meaning to move it beyond “descriptive” status. The slogan has been a common campaign catchphrase used in the past by several US politicians. Ronald Reagan first used it in his 1980 presidential campaign, and many people in the US still link it to his political era. Ted Cruz and Scott Walker, other candidates for the upcoming election in 2016, have also used it.
Whether or not Trump’s legal move is compliant with trademark law and despite his making sure he doesn’t need further money to finance his self-funded campaign, it nevertheless seems an opportunistic way to get profits by using politics and to take economic advantages from his own supporters.
This does not come as a big surprise. Donald Trump knows how to create and strengthen a brand, as he has done (and is still doing), spending lots of money licensing out his name on products and services that include ties, perfumes, water and of course hotels.
But when it comes to politics, which entails asking people to vote for you and then adopting policies in the pursuit of the public interest, it sounds odd and ethically dubious to mix the latter with profit-seeking.