The question is not whether Donald Trump can make America great again, but whether he can legitimately register MAKE AMERICA GREAT AGAIN with the U.S. Trademark Office. And, oh boy, does that question lead to a lot of misinformation from the media.
First, let’s distinguish between a clever phrase and a trademark. By definition, a trademark identifies the source of a good or service to a consumer. When you hear the two delicious words, Papa Del’s, you may think of a pizza restaurant in Champaign, rather than some fatherly Italian fellow who might live down the street. And if enough of you think about a specific place for pizza when you hear the two words, then they function as a trademark, and the restaurant’s owner will have the power under federal law to prevent you from selecting the same name for your restaurant in Central Illinois. You see, Papa Del’s has what trademark experts call “secondary meaning” in this market, which means that when most people hear the words, they associate them with the restaurant.
Can someone else open a Papa Del’s pizzeria in Seattle? Well, if no one there has heard of the place there, then probably so. But there may be a lot of Illini graduates in the Northwest and that combined with the nationwide shipping of the pizza in its frozen form might have established secondary meaning even in Seattle.
The important thing to remember is that trademark rights only exist when the symbol actually identifies the source of goods or services to the public. And the rights only extend as far as that recognition. Yes, I can sell Papa Del’s tear gas with no fear of violating trademark law.
This helps us understand why clever phrases standing alone are not protected by trademark law. For example, after Pat Riley won his third consecutive title with the Lakers, he is said to have coined the phrase, “Threepeat.” That’s an awfully nice bit of wordsmithing, but no one associates that phrase with a product or service being offered in commerce. When you hear the word do you think of a restaurant or canister of propone? A barber shop or shoelaces? No. You think of Riley or maybe what sports teams do when they win three times in a row. That’s not to say that Riley could not open a propane business and call it “Threepeat Grilling Supply.” He could build up consumer associations over time and merit protection in this narrow market. Maybe he should give it a shot . . .
This, of course, brings us to t-shirts and back to Trump. If we see “Threepeat” or “Make America Great Again,” do we see the name of the company who made the t-shirt? Or do we see a clever phrase or generic patriotic plea? It seems to me that if we want to know who made the t-shirt, we’ll flip up the collar and read Munsingwear, Fruit of the Loom, or Under Armor.
Clever phrases on apparel seldom function as trademarks (although the trademark will frequently register unenforceable works office in order collect fees). Some examples are obvious. Through millions of dollars of advertising, Nike associated “Just Do It” with swoosh in consumers’ minds with its products. When it appears on a t-shirt made by Nike, consumers are likely to think it comes from Nike
But do consumers expect t-shirts and hats bearing generic slogans like Make America Great Again, a common political turn of phrase most recently popularized by Ronald Regan, to originate with Donald Trump? They may associate the phrase with the candidate, just as we might associate Threepeat with Pat Riley, but that’s not the same as perceiving the phrase to be a source identifier of goods.
In the interest of full disclosure, I must reveal that Trump has succeeded in obtaining a registration for Make America Great Again for “political action committee and campaign services.” Maybe consumers draw the requisite association there, but another trademark doctrine comes to our rescue: Only confusing uses of trademarks are prohibited, so Hilary Clinton can claim to make America Great too, as long as no one confuses her with The Donald.