Last week, the Donald Trump Campaign filed a complaint against one of my “impeach” Donald Trump graphics. According to the Trump Campaign my use of “Make America Great Again” infringes on Trump’s trademark of that phrase. Is it about money? Is it about ego? Or, is Trump trying to silence dissent? With Donald Trump the answer seems to be all three.
First, let’s look at what a trademark is. As I am not an attorney, I’m giving you my layman’s understanding of trademark law through my years of experience in branding. Any representation of an idea; i.e. words, music or images can be copyrighted and/or trademarked. In recent years, any idea represented in any form of media that conveys the idea is copyrighted from the moment it is put on a media that can be viewed/heard by others. The copyright is automatically applied to the author/creator the moment they put it on media. In the United States, the copyright owner can register the copyright with the U.S. Copyright Office. The fee is about $35.
The difference between an automatic copyright and the registered version, as I understand it, is that it is easier to file suit and recover greater damages against someone that infringes on your copyright when it is registered with the government.
The other type of protection is a trademark. Most readers have seen a registered trademark when they see a logo or phrase with an R with a circle around it next to the trademarked object. A trademark application is filed with the United States Trademark and Patent Office. It costs around $225 if you do it yourself. However, trademark is much more difficult to file as it must meet required technical specifications.
Like a copyright filing, a trademark gives the owner additional powers over the intellectual property.
The important thing to remember is that copyright and trademark litigation is litigated in federal court making it costly to litigate on both sides.
In the case of Donald Trump, he filed a complaint with my t-shirt provider forcing them to remove my impeach Donald Trump t-shirts:
Rights holder: Donald J. Trump for President, Inc.
Subject matter: Donald J. Trump for President
Vote to Impeach Donald Trump This November 2018
The issue is that the Donald Trump Campaign trademarked “Make America Great Again” slogan on November 19, 2012. As far as I can tell, only one other presidential candidate has filed for trademark protection on a political brand before; Barack Obama, who trademarked his logo.
In the case of Donald Trump, there is an interesting trademark law learning experience. Unlike copyrights, a trademark is filed for specific uses. For example, t-shirts. In his 2012 filing, Trump protected only things that have to do with “Political action committee services, namely, promoting public awareness of political issues”.
But because Donald Trump filing did not include t-shirts, hats or other apparel in his original filing, an enterprising individual; Bobby Estell aka Bobby Bones filed another trademark application for the slogan for apparel. On October 26, 2015, the Trump Organization paid Estell an unknown amount for the rights for apparel. Estell says he donated the amount to St. Judes. It is rumored that Trump paid around $100,000 to get the trademark under his control.
It should be noted that it wasn’t Donald Trump who coined the phrase “Make America Great Again”. That was Ronald Reagan in the 1980’s. But Trump trademarked it. As you can see, it is not who first used it, but who files a trademark registration. A trademark filing can be opposed but this is beyond the scope of today’s write up.
Trump has an army of intellectual property lawyers defending the trademark. They have targeted Café Express and anti-Trump groups using the slogan. Besides people like me, the Trump lawyers have also issued cease and desist letters to Ted Cruz and Scott Walker.
Donald Trump isn’t just protecting the “Make America Great Again” slogan. On January 18, 2017, the campaign filed an application to trademark “Keep America Great”. This time he included apparel and other “classes”. Trump also filed another application on the same day for “Keep America Great!” Adding the exclamation point to the slogan.
The pertinent question is whether Donald Trump is afraid of political dissension or that the slogans are money making operations. The trademarks are owned by the campaign, meaning that any money generated by the trademarks on t-shirts and the like are supposed to remain in the political realm.
Money may be a part of it, as the campaign needs funds. However, it likely has more to do with keeping people – like me – from using the slogan to point out how much of a failure Donald Trump is. My design included the word “impeach,” clearly not in support of Trump.
I thought about fighting the take-down order under political free speech. But doing so in federal court is not only difficult but expensive as well.
Lucky for me, Donald Trump can attempt to silence through intimidation and legal extortion, but he cannot kill creativity. Rather than fight him on the trademark, I just went ahead and created two additional versions of the impeach Trump design.
Here they are:
They are now available online. Click here to buy one.