Political slogans have been playing a role in presidential campaigns since the earliest days of American democracy. Some slogans strike a cord with voters and remain known almost 200 years later. “Tippecanoe and Tyler Too” was used by William Henry Harrison’s campaign in 1840, and is still taught to school children. Like nearly every American campaign of the past, today’s candidates rely on their slogans to raise awareness and attract voters. However, today’s presidential slogans are not only bringing in votes, they are bringing in profits through the sale of campaign merchandise.
In order to become a registered trademark, a political slogan must be inherently distinctive, or must have acquired distinctiveness by a secondary meaning that immediately calls to mind a product or service. A secondary meaning is usually demonstrated by either five years of continuous commercial use or by significant sales and advertising.
But, even if a slogan meets one of these requirements, it can still be barred from trademark registration. For example, a mark cannot be “immoral or scandalous.” Under Section 2(a) of the Trademark Act, these kinds of marks are banned from both registers, Principal and Supplemental. This restriction has prevented the registration of a number of disparaging marks, referencing political candidates and insinuating various vulgar activities.
There is another restriction on trademark registration, that both candidates are currently benefiting from. Section 2(c) of the Trademark Act states that a mark that identifies a particular living individual will be refused registration if that person does not provide his or her consent.
On April 13, 2015, the Clinton campaign filed a trademark application for the mark, HILLARY FOR AMERICA. The application lists it intended uses for numerous goods and services in twelve different classes. Besides the obvious uses of political campaign services for fundraising and raising public awareness, trademark protection has also been sought for its use on pet clothing, golf balls, magnetically encoded gift cards, jewelry, and picture frames. This mark required a consent from Clinton, which she clearly agreed to provide.
However, the registration of Clinton’s trademark was delayed by the fact that a similar mark was previously filed, just two days earlier. An application for the mark HILLIARY (which added an extra “I” to insert the word LIAR in her name) was filed by a third-party. Despite the different spelling, the Trademark Office still required Hillary’s consent, because the mark clearly referred to the Hillary Clinton. As most expected, including the owner of the HILLIARY mark, Clinton never provided her consent. This mark was since abandoned, and HILLARY FOR AMERICA was later published for opposition. On July 05, 2016, a Notice of Allowance was issued. The mark can be registered on the Principal Register upon the acceptance of a Statement of Use.
Likewise, on the republican side, there were marks filed by third-parties that referenced the Donald Trump. The mark, TRUMP IT ! failed to register, in part, because no consent was ever provided by Donald Trump.
Trump has apparently been planning his presidential run for quite some time now. He applied for the mark, MAKE AMERICA GREAT AGAIN, back in November of 2012, just two weeks after Romney lost to Obama. After a few extensions, the Statement of Use was filed. The mark was finally added to the Principal Register on July 14, 2015. This mark was filed under, “Political action committee services, namely, promoting public awareness of political issues” (Class 35) and “Fundraising in the field of politics” (Class 36). Since then, Trump has filed the mark for various other uses, including stickers, blogs, dog apparel, bags, wallets, purses, umbrellas, online social networking services, as well as, numerous articles of clothing and accessories, such as the famous hats bearing the mark.
One might think that a politician’s primary goal for a slogan is to get votes. One might also think that those votes can increase by spreading that slogan, or the idea it represents, to as many eyes and ears as possible. Nevertheless, Trump has sought to limit the use of his MAKE AMERICA GREAT AGAIN mark. In order to protect the revenue streams created by the mark, and the goods identified by it, Trump has been sending cease and desist letters to producers of unauthorized merchandise.
Alan Marcus is a public relations professional who worked with Trump for years. Marcus explains that “Conventional politicians think they’re in a business that just goes out of business the first Tuesday after the first Monday in November (Election Day) . . . Trump sees his name as a brand that’s his biggest asset.”
With the election just a week away, one of these slogans will prove to be better at bringing in the votes. However, both have already been successful in creating profit streams for these presidential hopefuls.
Alexander Scalia is an Associate Trademark Attorney at LegalForce RAPC, specializing in trademark prosecution.