The Great American Trademark: Trump Team Moves To Trademark Campaign Slogan

trump-pence_2016-svgIt appears that Keeping America Great requires keeping America from using such phrases as Keeping America Great.  The Trump legal team has moved to trademark the slogan “Keep America Great!” Previously an effort to trademark the very same phrase was denied by the U.S. Patent and Trademark Office.

We have been discussing a disturbing trend in copyright and trademark claims over things occurring in public or common phrases or terms. (For a prior column, click here). We have often discussed the abusive expansion of copyright and trademark laws. This includes common phrases, symbols, and images being claimed as private property. (here and here and here and here and here and here and here and here and here and here and here). This included a New York artist claiming that he holds the trademark to symbol π.

Claiming ownership to such a slogan as “Make America Great” is an example of our runaway copyright and trademark claims.  The Trump application would bar its use on  T-shirts, tank tops, “baby clothing, namely, one piece garments,” and “printed publications, namely, pamphlets providing information regarding Donald J. Trump as a political candidate.”

I have long argued that there must be a reexamination of trademark and copyright protections in light of the use of the laws to claim ownership to common expressions and symbols.  The motivation is likely not to make profit but to keep others from using and mocking the slogan in commercial products.  Yet, the underlying problem remains with the expanding scope of both trademark and copyright claims.

What do you think?

34 thoughts on “The Great American Trademark: Trump Team Moves To Trademark Campaign Slogan

  1. Apple is a very common word, but one does not infringe the Apple trademark unless one sells goods (e.g. computers) using “apple” in a manner that is likely to confuse consumers about what brand of computer they are buying. Proving infringement requires showing that people were (or are likely to be) misled and bought products thinking the product was from a different source. (I’m leaving dilution of famous marks out for the time being as this is difficult to show in most cases)

    Obtaining a trademark registration is not especially difficult, but in the U.S. the applicant must actually use the mark in connection with sales of goods before the mark can be registered (The Lanham Act was passed based on commerce clause power because the Constitution only empowers Congress to pass patent and copyright laws). In foreign countries one can register a trademark even if they are not actually using the mark. The U.S. is actually much more restrictive than most foreign countries.

    However, enforcing a trademark registration (successfully suing someone for infringement) is not cheap or easy. In other words, there’s a big difference between getting a trademark registration and winning an infringement lawsuit.

    There are some overly aggressive mark owners who can cause problems. The Navajo Nation case appears to be an example of this, as does the Tootsie Roll case (In my opinion the Tootsie Roll case was extremely weak).

    The “YUUUP!” case is just STUUUPID! This case appears to be completely ridiculous on many levels. For starters, I can’t see how either party would have had any chance of showing confusion as to source.

    The conventional wisdom in trademark law is that the party with the deeper pockets always wins. Unfortunately, this is largely true. Trademark infringement lawsuits tend to be wars of attrition, and the party with fewer resources tends to fold before the court reaches the merits of the case.

    I’m not sure what the answer is. For many large companies their trademarks are some of their most valuable assets. People are willing to pay much more for a product that has a particular label on it. Personally, I do like being able to buy an iPhone (R) and be reasonably confident it’s not a fake. In countries with weak IP laws, the consumer has to be extremely careful when it comes to purchasing goods.

    Raising the bar in terms of evidence required to show infringement is one possibility.

    For example, proof of actual confusion or actual counterfeiting could be required in every case. Many trademark infringement cases are filed based on arguments that consumers are likely to be confused. The likelihood of confusion analysis is subjective and very little is required to avoid a SJ motion. This allows the party with the deep pockets to keep the case alive long enough to win the war of attrition.

    Another option would be to require survey evidence meeting certain standards if evidence of actual confusion is not entered.

    My .02 worth.

  2. Many people come up with the same ideas and very similar words in a given time frame. To try to own words has always bee ludicrous, but even more so today when billions of people forward, copy and paste, and retweet billions of messages every day. People are focusing on free speech without thinking about the possible copyright protection of common words.

  3. OMG …. A ‘bad words’ editor included at no extra charge.

    IMAGINE THAT. Cohen v. U.S. (F… the Army.) Notwithstanding.

  4. Again Jose has left us with his screed against people but nothing substantive of his own. This is habitual with you isn’t it? You appear to get your rocks off trash talking everyone on the blog you disagree with, but never make a legitimate statement of your own on the subject at hand.

    • Still living in the past, bam?

      Move on to the new battles; or is your vitriol waning? I miss your thousand word screeds; they were funny.

      • I see that you have discovered the semicolon, Jose. Congrats. Now, if you could only learn to use it correctly. That’s the key, you know. Don’t worry. I’m nothing, if not patient.

        • You don’t pay attention, bam. I’ve used the semi for many years.

          Let’s see: you have noted my ill-use of the comma, and now the semicolon. Care to comment on the use of colons?

          Maybe someday we will see a thousand word screed from you that is not contained in a single paragraph, as is your wont.

          It’s not difficult — hit the enter key somewhere between the beginning and end.

          Until then.

          • WONT? My, my Jose. Looks like you’ve finally decided to take the plunge and invest in a Thesaurus, as well. Glad to see that I’ve impacted your life in such a remarkable fashion. I’m honored.

        • Start now!

          Maybe use paragraphs next time around, though. Walls of screed are difficult to read, paragraphs of screed, though, are much easier to wallow through.

          Maybe it’s just me, but when someone with as much hate as you exhibit writes so much without a pause of thought — as exhibited by your lack of periods, commas, semicolons, and paragraphs — I just have to wonder how much thought you’ve put into the effort.

          Slam me for my em dashes now?

          Pathetic.

          • What’s truly pathetic is that you equate any contributions, with which you tend to disagree, or, with which your small brain is incapable of deciphering, as hate speech. But, you see, Rain Main, um, I mean, Jose, unlike you, I actually form and contribute opinions. Like them or not, agree with them or not, there is no doubt that they are my original thoughts. My opinions. My perceptions. My beliefs. Now, you, on the other hand, are consistently and perpetually incapable of adding any such value via original and personal opinions to this blog, as you simply succumb to relegating yourself to making snarky and petulant remarks about the thoughts of others. I get it. Your small and insignificant life sucks, and your persistent criticism, pertaining to the comments of others, makes you feel as though you are in the mix. Still viable. Still alive.

            Again, Rain Man, as I have written previously, if you don’t care for my style of writing, there’s a solution. Don’t read my comments. Simple. If the voices in your head tell you that my comments are filled with vitriol–one of those new thesaurus words that you now employ with abandon–don’t read my comments. If you don’t believe that there are enough paragraphs for your liking, again, Rain Man, simply don’t read my screeds–another word gleaned from that thesaurus that you finally managed to pick up at the Dollar Tree. We continue to await one original, thoughtful and relevant comment from you. I’m not holding my breath.

      • I’ve slogged my way through some tedious writings in this blog but I cannot recall one time it being one of bam bams’. Bam, I don’t care how many words you put in your posts, punctuate properly or misspell. You are original, value-added and above all reasoned. Keep it coming!

    • Absolutely, but how do we qualify and articulate objectively copyright eligibility, such as some palpable societal benefit, from fluff when writing a copyright law?

      I’ve always thought the condensation of the words three and repeat into what was later approved as the trademark “three-peat” for Miami Heat GM Pat Riley’s Riles and Co., Inc., was immeasurably lame and without substance enough to meet what should be the threshold of copyright protection. But if an NBA coach and former LA Laker and Kentucky Wildcat can do it, why not a fascist with his finger on the nuclear button?

      From today’s El Pais online addition of the Spanish newspaper”

      “Thank you, dear voters. You will never forget me.”

      Got impeachment?

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