Make America Great Again… and then Keep America Great!

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Make America Great Again… and then Keep America Great!

No matter how you feel about President Trump’s campaign promises and now his administration's actual policies, few disagree that Mr. Trump is business savvy in many things he does. Mr. Trump's branding illustrates that point the best. He gets it. Days before swearing in as the nation’s 45th president, he already came up with a slogan for his re-election campaign in 2020, “Keep America Great.” What’s more he instructs his trademark lawyer to apply to register the slogan with the U.S. Trademark Office the same day.

The story goes that, on January 18, 2017, during an interview with a news reporter, the reporter asked President (then President-elect) about his slogan, “Make America Great Again.” Donald Trump suddenly paused the interview and called out to his staff, “Get me my lawyer.”

Donald Trump understands the urgency. If you don’t act fast enough, somebody else will. And you would get in a situation, when you must claw back the name or slogan that you made famous, whereas somebody else is trying to taking advantage of and ride on your coattails.

If you search the U.S. Trademark Office’s (USPTO) register, you will find almost a half dozen of pending applications for MAKE AMERICA GREAT AGAIN for various items owned by somebody other than Donald Trump. Of course, Donald Trump himself owns two registered marks and two pending applications for the slogan. Mr. Trump first applied to register his slogan in November 2012 (more than two years before he formally announced his candidacy!) and got his registration in July 2015. Here is a sample of use of the mark that Mr. Trump submitted to the USPTO as a specimen for one of the two registrations.

Even if you are smart as Donald Trump, there is almost always someone out there who might outsmart you. Case on point, someone from Washington DC, named Andreas Mueller, filed an application for the trademark KEEP AMERICA GREAT on July 6, 2016. This is more than four months before the historical elections of November 8, 2016 and more than six months before Mr. Trump himself came up with this slogan! Amazing anticipation.

Mr. Mueller is trying to register the mark for sunglasses, t-shirts, tank tops and hats. So far, the Trademark Office is resisting Mr. Mueller’s application, but not because Mr. Mueller obviously was inspired by Mr. Trump’s campaign slogan. The slogan clearly is playing on Mr. Trump’s famous slogan. But seemingly on a technicality. According to the USPTO examiner, the slogan as displayed on a sample of use fails to function as a trademark. Put differently, consumers will not perceive the phrase as a brand, but would perceive it as something else (for example, as a political statement).

What does it mean for Mr. Trump’s newly-filed applications? Assuming Mr. Mueller’s application remains active with the USPTO, it will almost certainly block Mr. Trump’s application. What Mr. Trump is going to do about that we don’t know. He does have some legal options, which we will not go into now…

The moral of this story is that once you conceive or pick your trademark or marketing slogan or logo for your business or other activity, you do want to rush to the Trademark Office and reserve it. What you want to do is to file a so-called "intent-to-use" application. The date of your filing will function as your “priority date.” This is like a number ticket you get in a deli of a supermarket. The filing will start the Trademark Office’s examination process in about three months after the filing date. The only major prerequisite for filing such an application is that you are doing it in good faith and do plan to use the mark eventually. When/if the application makes it through the examination successfully, the USPTO wouldn’t register the mark until you present sufficient evidence that you are using the mark in the marketplace.

Of course, like with anything, a good name or slogan may help you sell the product, but whether or not your product will succeed on the market will depend on the quality of your product. So far, President Trump is keeping his campaign promises and does exactly what he promised the American people he would do. Whether Mr. Trump’s presidency will be successful, we will know soon enough.

Text © Maxim A. Voltchenko 2017

* This piece is not intended to be a review of U.S. law or politics. This posting may not necessarily represent the views of the author’s employing law firm. Although every effort has been made to verify the accuracy of items in the Sputnik Blog®, readers are urged to check independently on matters of specific concern or interest.