Tim Lince

As the poll numbers of Republican presidential hopeful Donald Trump continue to rise, so too do the number of trademark filings using his name. Trump’s lawyer has confirmed to World Trademark Review that there has been a recent uptick in infringement, but reveals they are adopting an “aggressive” stance - whether it is to those infringers with a negative intent or to genuine Trump supporters.

The 2016 US presidential primaries are in full swing, and drama surrounding businessman and TV personality Trump has been the biggest talking point so far. His focus on immigration, including inflammatory remarks about Mexican immigrants and a vow to build a 15-foot-high wall across the length of the US-Mexico border, appears to have struck a chord with the Republican base. While still early days, Trump currently leads the 17-candidate Republican pack by a large margin in key states Iowa and New Hampshire. It is early days (with an LA Times analysis suggesting a Trump win in the primaries is “unlikely”), but the recent fervour around the Trump ‘brand’ has spurred an influx of trademark filings attempting to capitalise on the buzz.

The increase in US filings becomes apparent when looking at the numbers. In the last month, 13 applications have been filed from registrants who do not appear to be associated with Trump’s campaign or businesses. In the 12 months before that, only six applications were filed from seemingly non-Trump interests. Interestingly, most of the applications filed in the last month appear to be supportive of Trump’s campaign. For example, trademarks filed include YOU CAN'T SPELL TRIUMPH WITHOUT TRUMP (covering apparel goods and services), I STUMP FOR TRUMP (covering apparel), TRUMP IT! (covering apparel), AMERICAS (sic) TRUMP CARD (covering advertising slogans), LADY AND THE TRUMP (covering shirts) and ELECT TRUMP FIRE WASHINGTON (covering political information). Outside of the US, a trademark was also filed a week ago in Mexico for TRUMP under Class 16 for “toilet paper” – one suspects from an applicant less supportive of Trump’s campaign.

For most political candidates, be it during the current US election or in general, Mark H Jaffe, a trademark and copyright lawyer at Tor Ekeland PC, argues that a nuanced approach to oppositions and enforcement is required, especially where potential supporters are involved: “In the case of individuals filing their own trademarks, I think it would be acceptable for any candidate to oppose the mark. However, if they’re dealing with supporters who are often not sophisticated in IP law, the legal team should try and do it in a way to show them that what they think is helping is actually harming the candidate. This means the campaign should work out a trademark strategy where they don’t look like bullies but are stringent in opposing marks. That might be tricky with the general public because they aren’t necessarily going to understand the difference between opposing the registration of a trademark and suing somebody. It could then get reported in a general mainstream publication, for example, ‘Hillary Clinton sues a supporter’. It’s a tricky issue with a number of nuances, but that’s what being a politician is all about.”

However, Trump is no ordinary politician. Charged with dealing with potential infringement is Alan Garten, executive vice president and general counsel for The Trump Organisation. He tells World Trademark Review that “there has certainly been an increase in the filing of infringing trademark applications”, and adds that, regardless of whether there is a positive or negative motive, “as a company we scrupulously protect Mr Trump's worldwide trademark portfolio and intellectual property rights. Accordingly, any attempt by anyone to infringe on those rights will be vigorously opposed. Period. Our approach remains the same: while we appreciate the support of the public, we cannot permit the dilution of Mr Trump’s intellectual property rights. If someone files for an infringing trademark, we will aggressively oppose. The public is able to support Mr Trump in ways other than filing for infringing trademarks”.

The hard-line approach being taken by Trump’s legal team is no surprise to Jaffe, who remarks: “Trump has built a brand that has pre-existed him becoming a political candidate and will more-than-likely extend beyond him being a political candidate. Furthermore, Trump doesn’t care about negative publicity or if people suggest his lawyer is too aggressive, and his supporters have continued to demonstrate that there is nothing he can do that will change their perception of him.”

Of course, some of the aforementioned marks may get rejected by the trademark office due to false association before they’re published for opposition. Nonetheless, as the US election builds up, some of the candidates will have brands that supporters and opponent will inevitably try and file trademarks for (there were nearly 100 unassociated applications containing ‘Obama’ filed during his first election campaign). This means campaign trademark strategies need to be drawn up and communicated, supporters need to be educated about IP infringement and media outlets needs to not attack every instance of a candidate’s IP team doing their job.

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