DUDES FOR DONALD? Trademark Filers Waste Filing Fees on Trump Trademarks

By Josh Gerben, Esq.

If you apply for a trademark that references a living president or a political candidate, prepare to be denied. Currently there are over 275 active trademark applications containing the word “TRUMP” and chances are, unless they were filed by Donald Trump or his family, then many of those applications will be denied. Why? Because the United States Patent and Trademark Office requires the consent of any living individual to register a trademark containing their name.  That means, presuming most of these TRUMP-formative trademarks will be denied, applicants spent over $75,000 in government filing fees on trademarks that had little to no chance of ever being accepted.  The writers of this blog could think of many better ways to spend that money.

Since the presidential election, applications containing the name TRUMP have skyrocketed. Support and distain for Donald Trump and other political figures have spurred a huge number of TRUMP trademark applications, including TRUMP HARDER 2020, PUTIN OF TRUMP’S UNITED STATES, TRUMP DON’T SURF, and TRUMP ON! These trademarks, and others, are likely to be denied.

If you apply for a trademark registration that invokes a political candidate or elected officials name or likeness, you will likely be denied under Section 2(c) of the Lanham Act, which requires written consent when attempting to register a name identifying a living individual. For the purposes of Section 2(c), a name in a mark identifies a particular living individual if the person bearing the name will be associated with the mark as used on the goods or services because: (1) the person is so well known that the public would reasonably assume a connection between the person and the goods or services; or (2) the individual is publicly connected with the business in which the mark is used.”

For example, applicants have filed over 180 trademark applications that include the word “Obama” and only two of them have achieved a registration. Those successful applications were filed by the official Presidential Inaugural Committee and the Barack Obama Foundation. That means that, at the very least, applicants spent over $50,000 in government filing fees alone on OBAMA applications that were denied and likely had little to no chance of ever being accepted in the first place.

This doesn’t even include marks using BARACK, misspellings of OBAMA and other variations, such as Obama nicknames. In fact, the Trademark Trial and Appeal Board, the appeals board for the USPTO, affirmed the refusal of OBAMA PAJAMA, OBAMA BAHAMA PAJAMAS, and BARACK’S JOCKS DRESS TO THE LEFT because the marks created a direct association with President Barack Obama. In re Hoefflin, 97 USPQ2d 1174, 1177-78 (TTAB 2010).

The USPTO has already begun denying applications for TRUMP marks. One Examining Attorney denied TRUMP START AMERICA in part, because of a lack of formal consent and stated that “registration is refused because the applied-for mark, TRUMP START AMERICA, consists of or comprises a name [TRUMP] identifying a particular living individual [Donald Trump] whose written consent to register the mark is not of record.” In another, the Examining Attorney denied SHUT THE TRUMP UP! for apparel because “SHUT THE TRUMP UP! references Donald Trump” without his consent.

In general, Section 2(c) applies not only to the full legal name of an individual, like Donald Trump, but also to any first name, surname, nickname, shortened name or any other identifier that identifies a particular living individual.  Adding other words or images does not alter the requirement for written consent.  For example, even though the below image submitted with trademark Ser. No. 86893447 has a lot more design elements than simply the word TRUMP, it will still be denied, as it refers directly to Trump.

However, this does not mean that every trademark containing a name that could be a political candidate’s name or nickname will be denied. The trademark CULTURE TRUMPS EVERYTHING (Reg. No. 4881671) was registered without the consent of TRUMP. However, there is a note in the record that the Examining Attorney consulted her Managing Attorney. While this is pure speculation, she could have been asking whether this was a reference to Mr. Trump. There are also plenty of registrations including the names DONALD, TRUMP, BARRACK, etc. While these marks can obtain registrations, it’s likely that the USPTO attorneys are increasingly asking applicants for more information about the nature of the trademark, especially given the huge amount of political marks being applied-for.

Also, this is not to say that use of a trademark containing and referring to a candidate’s name will create a likelihood of confusion or constitute trademark infringement. There may very well be perfectly valid reasons to call your political group “Firefighters for [Candidate Name]” or create artwork for campaigns involving the names and likenesses of candidates without infringing on any trademark rights. That being said, you should always consult an attorney about your specific situation before selecting and using a trademark.

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Josh Gerben, Esq.

Josh Gerben, Esq. is the founder and principal of Gerben IP. In 2008, Mr. Gerben started the firm to provide high-quality trademark services at reasonable prices. Today, he is recognized by the World Trademark Review as a top trademark filer, having registered over 7,500 trademarks. The contents of this blog are for informational purposes only and may not be relied on as legal advice.