May 16, 2016


by Stites & Harbison, PLLC

Based on Donald Trump's trademark filings, one might surmise that Trump has been warming up for a run for the presidency for years now. In fact, the Republican nominee applied to register "MAKE AMERICA GREAT AGAIN" just six days after President Obama defeated Mitt Romney to win a second term of presidency.

Make America Great Again Page

Now, every politico knows that Trump didn't coin this phrase. Ronald Reagan used "Make America Great Again" as his 1980 campaign slogan. He plastered it, much like Trump is now doing, on everything from buttons to posters and even included it in his acceptance speech. So how can Trump claim trademark rights in the phrase now? Good question.

Rights in a trademark can be lost through the action or inaction of the trademark's owner. The most common way to lose rights in a mark is to stop using the mark with no intention to use it again. This is called "abandonment" and precisely what happened after Reagan stopped using the mark, leaving it free for Trump to pick up.

Since Trump wasn't actually using the mark in 2012, he filed an intent to use application, which allowed him to claim rights in the mark as of the date of filing the application. Once he actually started using the mark in commerce in "political action committee service, namely, promoting public awareness of political issues and fundraising in the field of politics," he was able to file a statement of use and allow the application to proceed to registration.

Trump's mistake was in only filing the application in connection with political action committee services, rather than, in 2012, filing the application for everything from hats to bumper stickers to sweatshirts.

Trump Hat

He didn't file his application for registration of "MAKE AMERICA GREAT AGAIN" for use in connection with these goods, among other goods and services, until August 2015. Perhaps this was because Trump didn't anticipate his popularity, though that seems hard to believe. However, as usually happens with celebrities' trademarks, bystanders look to capitalize. Meri Bares and Bobby Estell (that controversial DJ known as Bobby Bones) filed an application to register "MAKE AMERICA GREAT AGAIN" on, broadly speaking, every good imaginable. Then they out-hustled the hustler.

Two days later Bones tweeted: "hey @realDonaldTrump, if you donate 100k to @stjude, I will give you your clothing trademrk back. thanks!âBobby." At the end of October, Trump donated the requested $100,000 to St. Jude, and shortly after Bones transferred his application to Trump.

A tip of that hat to both Bones and Trump on this one.