Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 21, Issue 24
BUILD BACK BETTER and MAKE AMERICA GREAT AGAIN: Trademark Protection for Political Slogans
For those of us who are political junkies, although the 2021 elections are over, the midterms will soon be here, not to mention 2024. Thus, for better or worse, we will continue to encounter political slogans. The question is whether the campaigns and the swag sellers will be able to protect those slogans through U.S. trademark registration.
The most recent entry into the gallery of political slogans at the U.S. Trademark Office is “LET’S GO BRANDON.” For the non-junkies, “LET’S GO BRANDON” originated at a NASCAR race in early October when a reporter, while interviewing a driver, Brandon Brown, observed that the crowd was chanting, “Let’s Go Brandon,” when in fact it was chanting “F- Joe Biden.” When the error was revealed, a meme was born.
LET’S GO BRANDON is now the subject of twenty U.S. trademark applications that were filed between October 4th and November 23rd, 2021, including applications by U.S. and China applicants, as well as one application for the mark in Spanish, “VAMOS BRANDON.” Some applications seek registration for wine, several are for clothing and hats, others cover bumper stickers and flags. Thus far, many samples of use submitted with the applications display the marks as splashed across a flag, written on a bumper sticker, or placed on the front of a t-shirt, each of which may be described as “ornamental” use of the marks.
Although none of these applications has yet to be examined by the Trademark Office, some prior attempts to register political slogans support an outcome that such “ornamental” uses constitute a failure to function as a trademark and registration will be refused. Other attempts to register political slogans have been met with Trademark Office refusals based on the ground that the marks would be perceived by consumers as mere informational statements and not as brands for the goods or services recited in the applications. Ornamental use and mere informational statements, rather than use as a trademark, are common roadblocks for applications that seek to capitalize on popular new phrases or memes.
For example, in one case, the Trademark Office concluded NO MORE RINOS! was not registrable. Significantly, the placement, size and dominance of the wording on the samples submitted with the application were consistent with an informational use, not a trademark use. In short, rather than serving as a brand, the Trademark Office considered NO MORE RINOS! to be purely informational, targeting “Republicans In Name Only.”
Similarly, on October 21, 2020, “Build Back Better” of Alexandria, Virginia filed an application for the slogan BUILD BACK BETTER listing “promoting public awareness of progress for all Americans by investment in infrastructure, the creation of new jobs, and social progress by means of public advocacy.” On March 24, 2021, the Trademark Office refused registration on the basis that the mark is merely an informational message that fails to function as a trademark. Because the applicant never responded to the refusal, the application abandoned.
On the other side of the aisle, Donald J. Trump for President, Inc., was able to successfully obtain three registrations for MAKE AMERICA GREAT AGAIN®. The first issued on July 14, 2015, for “promoting public awareness of political issues.” The second issued on August 16, 2016, for a plethora of goods and services, ranging from bumper stickers to sweatshirts to an internet blog. The full list of goods and services can be viewed HERE. The third registration issued on November 26, 2019, for a variety of goods, including dog and human clothing and hats. The Trademark Office issued an “ornamental” refusal, noting that the mark located in the top center of the dog clothing and hat (as shown in the sample of use filed) dominated the overall appearance of the goods. However, the Trump campaign responded by arguing that the Trademark Office failed to identify any evidence to support the conclusion that the slogan failed to function as a mark. Among other things, the Trump campaign argued that “both ‘Trump’ and ‘Pence’ are depicted in significantly larger font and dominate the overall appearance of the dog clothing” compared to the mark MAKE AMERICA GREAT AGAIN, which appeared on the clothing in a manner that would be recognized by consumers as a mark and not mere ornamentation. The sample of use for that application, including a photograph of the dog clothing bearing this political slogan, can be seen HERE. The arguments succeeded and the registration issued.
It is also worth noting that the 2019 Supreme Court decision in Iancu v. Brunetti allowed the registration of the mark “FUCT,” and opened the door to the registration of other profane trademarks. As a result, representatives of President Biden will not be able to oppose registration of LET’S GO BRANDON, at least not on the basis that this mark is scandalous, offensive, or immoral.
Published November 26, 2021
Fishman Stewart Attorneys Named to the 2022 DBusiness Top Lawyers List
The following attorneys – pictured above – were credited with excellence in their respective Top Lawyers categories: Maxwell Goss, John P. Guenther, Douglas P. LaLone, and Barbara L. Mandell
In addition to DBusiness Top Lawyers accolades, all four attorneys were named 2021 Michigan Super Lawyers and 2022 Best Lawyers® earlier this year.
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