You’re Fired, America.
There is no denying Donald Trump is a successful businessman; some may even agree with him when he modestly claims he has King Midas’ golden touch.[1]
However, Mr. Trump’s strategic and corporate-wired brain may have met its match in the political arena. Since his presidential announcement speech in June, Mr. Trump has been adamant about protecting his[2] token slogan, “Make America Great Again.”[3] In fact, Mr. Trump has begun the trademarking process to safeguard his political motto from being printed on clothing and other political memorabilia without his permission.[4] Although Mr. Trump is not the first (potential) politician to use trademark protection (the Obama campaign trademarked the famous “O” symbolizing a rising sun and a new day[5]), he is one of the few to register a slogan and the first to register one that uses the geographical term “America.”[6]
The requirements for trademarking slogans that include geographical terms are two fold. First, they must be “distinctive, not merely informational, generic or laudatory.”[7] Second, they must also prove that they have acquired a secondary meaning.[8] A slogan is thought to have acquired such meaning if the brand owner can demonstrate that its use by another party would “cause confusion amongst consumers as to the producer or provider of the goods or servicers.”[9] Thus, under United States trademark law, many common phrases such as “Proudly Made in the USA” cannot be trademarked unless they have acquired a secondary meaning (think Nike “Just Do it”, KFC “Finger Lickin’ Good,” etc.).[10]
Unlike Trump’s failed attempts to trademark phrases such as “you’re fired,” “trumpublican,” and “Trump for President,”[11] according to trademark experts it seems likely that “Make America Great Again” is distinct enough to warrant a trademark[12] – despite the irony that President Reagan first used the slogan in his 1980 campaign and Mr. Trump merely copied it.[13] The phrase has acquired secondary meaning in the marketplace as a result of advertising and continued usage throughout Mr. Trump’s campaign. A simple Instagram or Twitter hashtag search of “#makeamericagreatagain is almost always followed by #Trump2016. However, a question remains: should Mr. Trump actively seek to enforce the trademark?
It should be telling to Mr. Trump that hardly any political mottos have been trademarked – and those that have, have been predominately symbols, not phrases.[14] Despite this fact, Mr. Trump’s legal team has targeted online sellers such as Etsy.com and CafePress.com in order to halt knockoffs from being sold.[15] Although Mr. Trump’s action to trademark his slogan reflects his need to protect his brand (a wise business decision), he may be harming himself long-term in the political arena.
It seems counterintuitive to protect a slogan in politics. The reason campaigns spend copious amounts of money devising clever catchphrases to convey their party’s and/or their leader’s mission is purely for marketing purposes to create brand awareness. By holding this trademark, Mr. Trump is seriously limiting both his marketing and branding powers, as he is subjugating his collateral to be manufactured at a premium price, which subsequently could deter a large portion of the population from purchasing said merchandise. For example, although certain people may find his slogan catchy, they may not want to spend $30 for a hat or t-shirt from the official “Trump for President” website[16] vs. purchasing a similar item at a lower price from a different seller. If Mr. Trump were to consider the masses, he may ultimately create more awareness for his campaign by enabling additional sellers to offer his merchandise for purchase.[17] It seems unlikely that the billionaire, self-funded Mr. Trump is going after online retailers because of their competing prices and his need for more funds. Although the businessman inside of him may want to protect his brand, many may start to wonder whether Mr. Trump is using politics to take economic advantage of his own supporters[18] despite having “no need”[19] for other people’s contributions. Having no business background myself, it nevertheless seems obvious that continuing this strategy would be unwise on both the business and the political fronts.
Mr. Trump should perhaps re-think his political strategy in enforcing his trademark (provided that he receives it) because as history has shown us, the Midas touch can bring about devastating consequences.
Image: Imgur
Footnotes
