Trademarking a Catch Phrase

Since the presidential candidate started wearing his red hat bearing the slogan, the product has become a must-have among his supporters. It comes 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 selling for as little as US$4.99. So the tycoon-turned-politician has not waited long to protect his trademark and is currently going after the people behind these knock-offs.

Since the presidential candidate started wearing his red hat bearing the slogan, the product has become a must-have among his supporters. It comes 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 selling for as little as US$4.99. So 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.

However, can you really trademark a slogan? In addition, 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. However, 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 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 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, deeming that European consumers would 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 are revocable 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 does not 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.

However, 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.

How Donald Trump trademarked the slogan ‘Make America Great Again’ is republished with permission from The Conversation