Thursday, December 8, 2016

As If We Didn't Get Enough During the Campaign...

If you shop on Amazon, or watch the late night talk shows, you have probably seen the Make America Great Again Red Cap ornament (available at prices ranging from roughly $150 to over $200). It is listed on Amazon as “by Trump”.  Of course it is.

But just to be sure, I checked the United States Patent and Trademark Office records and confirmed that Donald Trump had indeed registered the mark MAKE AMERICA GREAT AGAIN for political action committee services and fundraising in the field of politics, as well as clothing, bags, buttons, bumper stickers, signage and similar items typically associated with political campaigns.  (The mark was assigned to the non-profit corporation Donald J. Trump for President, Inc., which currently owns the registrations, so “by Trump” may not be technically correct, but who really cares so long as the revenues are reported by the correct party.)

Candidates don’t often put much effort into the registration of “marks” used in their campaigns. The candidate’s name is generally the most, if not only, important message on signage, buttons, bumper stickers, hats, shirts and other campaign paraphernalia. Slogans, even if catchy and memorable, typically have a shelf-life ending at or shortly after the election. For example, the Obama campaign (Obama for America non-profit corporation) applied to register GREATER TOGETHER prior to the 2012 election, but abandoned the application after the election.

In digging around on this subject, I was surprised to see the number of applications for trademark registrations that had been filed by non-candidates for the registration of marks associated with the recent presidential campaign.  I could tell the marks were associated with the 2016 election because they included “Hillary” or “Trump” (or the occasional “Clinton” or “Donald”); I was surprised because it is well-established that you can’t register a mark that includes the name of a living person without the consent of that person, and even if you could get by that hurdle, you would have to know that Trump already owns the TRUMP mark for every product or service imaginable.

Even more mysterious is why applicants would go to the effort of applying to register marks that would arguably have little value beyond the conclusion of the election. Campaigns offer opportunities to capitalize on the moment through the sale of bumper stickers, signage, t-shirts, caps, buttons, mugs and the like bearing campaign slogans. When the campaign ends, so ends the market for such things, except for the occasional souvenir collected in the first couple of months after the election.

Yet I can see that applications were filed to register such slogans as HILLARY RODENT, LYIN HILLARY, HELP HILLARY TO THE JAIL HOUSE!, HILLARY.CON, HILLARY CLINTON IS POLITICALLY INCORRECT, HILLARY NEVER, CROOKED HILLARY, LOCK HER UP, NO TRUMP CHUMP, DON’T TRUMP ON ME!, LOVE TRUMPS HATE, GET THE TRUMP OUTTA HERE, PTSD: POST TRUMP STRESS DISORDER, TWO HEARTS BEAT “ONE NO-TRUMP” and LYIN TED, for the standard political campaign goods. By the proposed uses stated in the applications, most or all of these marks (already disqualified for the use of a living person’s name without express permission) would also fail to meet the minimum trademark requirement for use as a brand and not simply for “decorative” purposes. Moreover, under the best of circumstances, these marks would substantially exhaust their value even before a registration could issue.

Other applications filed during the campaign, such as DUMPS FOR TRUMP (for plastic bags for disposing of pet waste) or I AM NOT A CROOKED HILLARY (for wax statues), are related to goods (or services) that are not necessarily limited to the campaign season. At the same time, the negative messaging that sells so well during a campaign ordinarily wanes (or changes) once one of the named individuals is elected President of the United States and the other becomes politically irrelevant.     

So why did applicants make the effort and spend the money to apply for registrations that they had little chance of obtaining, and in any event have a limited market life? And why do they continue to file such applications after the election? While some post-election applications attempt to capitalize on the outcome – TRUMPNATION and TRUMP THE BOARD GAME – more appear to be going after the sore winner/unhappy loser market:  TRUMP YOU!, LOCK HER UP, HANDCUFFS4HILLARY, FIST BUMP FOR PRESIDENT TRUMP, TRUMP RESISTANCE MOVEMENT, IMPEACH TRUMP, MAKE HILLARY GREAT AGAIN, etc.   

I don’t understand, but can only hope these applicants are just emulating the Trump branding strategy or attempting to find the lighter side of the recent election, rather than trying to keep up or encourage the “meanness” that pervaded all sides of it.

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