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“Make America Great Again”: the trade mark

Print publication

18/11/2015

The American public are becoming increasingly used to the sight of Donald Trump festooned in a baseball cap proclaiming the slogan “Make America Great Again”. Supporters can buy the caps; apparently, demand in the States is huge. “Make America Great Again” is Trump’s campaign slogan, unveiled at some point in all his election rallies.

Aware that, whatever else he is, Trump is an astute, businessman, the US public were probably not too surprised to learn that Trump has trade marked the slogan. Indeed, he first applied for registration in November 2012, shortly after Barack Obama defeated Mitt Romney in the last Presidential election, an interesting indicator, perhaps, that Trump has held fairly long-term political ambitions. The registration is in respect of “promoting public awareness of political issues and fundraising in the field of politics”.

Trump has shown a willingness to pursue those who use the trade mark.  He criticised fellow Republican challengers, Scott Walker and Ted Cruz, for using the slogan as part of their campaigning, reminding them “That’s my expression”. His lawyers have reportedly also sent cease and desist letters to companies offering alternative, unauthorised “Make America Great Again” merchandise.

How did Trump manage to register the slogan? If one stands in the position of a Republican Presidential hopeful, presumably dissatisfied with the present regime, proud patriots and hankering after the Reagan era, it is actually quite hard to conceive how they could make a speech without saying something similar to “Make America Great Again”. In other words, the slogan appears to be descriptive, rather than distinctive and, as such, it should not be capable of registration. Further, the slogan is, essentially, advertising – the product in this case being the concept of Donald Trump as President of the United States – and advertising slogans are very difficult to register as trade marks.

A brand owner seeking registration of a slogan must show that the slogan has acquired a “secondary meaning” on its own. A slogan will be considered to have acquired such a secondary meaning if the brand owner can demonstrate that its use by another party would cause confusion among consumers as to the producer or provider of the goods or services in question. Trump obviously persuaded the US Trademark and Patent Office that his slogan met that threshold. It would not be a surprise at all, if a political opponent were to challenge its registration and seek revocation.

Interestingly, Obama never sought to trade mark  the arguably better known “Yes We Can” slogan but his team did trade mark the campaign’s “Rising Sun” logo and sued an online marketer who sold merchandise bearing the logo without authorization.

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