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Can You Trademark a Political Slogan? | A Comprehensive Guide

Pablo Segarra

Introduction

Ever wondered if you can trademark a political slogan? Political slogans are powerful tools that can define campaigns, movements, and public perception. But, can these catchy phrases be legally protected? In this comprehensive guide, we’ll explore the ins and outs of trademarking a political slogan, the legalities involved, and what it means for your campaign or cause.

Recently, Representative Jasmine Crockett filed a trademark for the phrase "Bleach Blonde Bad Built Butch Body." Although not a political slogan, it's notable because it was filed under two classes: Class 25 (clothing items like hats, hoodies, and T-shirts) and Class 35 (political consultancy). This raises questions about the feasibility of such trademarks and their implications in different classes.

Navigating Trademark Applications for Political Slogans

When submitting trademark applications for political slogans, it's essential to conduct comprehensive trademark searches. This process helps identify any potential conflicts, such as a likelihood of confusion with existing trademarks, which is a common hurdle in securing federal trademark registration. Political slogans, given their nature, can sometimes blur the lines between political speech and commerce, especially when they are used to engage people in business or to promote ideas and political issues.

Conducting Trademark Searches

Conducting a thorough trademark search is crucial to identify any potential conflicts and ensure your slogan is unique. The USPTO's Trademark Electronic Search System (TESS) is a valuable tool for this purpose. It helps you check if your slogan is already registered or if there are similar trademarks that could cause confusion.

Obama Campaign Example

A notable example is the Obama campaign during the 2008 election. The campaign registered several trademarks for slogans and phrases associated with Barack Obama's candidacy. These trademarks were filed under categories such as “Political campaign services, namely, fundraising in the field of politics.” This strategy was part of a broader effort to protect the campaign's brand and prevent unauthorized use of its key messages.

The Obama campaign's trademarks included well-known phrases like "Change We Can Believe In" and "Yes We Can." By securing these trademarks, the campaign could ensure that merchandise bearing these slogans could only be produced and sold by authorized vendors. This not only helped in maintaining brand consistency but also played a crucial role in fundraising efforts. The campaign's use of trademarks is a common practice among political campaigns aiming to protect their intellectual property and maximize their commercial and promotional efforts.

Considering the Impact

It's also important to consider the significance of trademarking your slogan for your campaign. After Donald Trump registered a trademark for his political slogan "MAKE AMERICA GREAT AGAIN," the United States Patent and Trademark Office (USPTO) received almost 300 applications for trademark registrations of similar slogans, some in a derogatory manner. This flood of applications demonstrated the immense popularity and recognition of the slogan but also highlighted potential drawbacks.

One major issue is the difficulty in policing and enforcing trademark rights when numerous variations and imitations exist. For example, derivatives such as "Make America Date Again" or "Make America Skate Again" have been used in various contexts, some supportive and others critical. The proliferation of these variations can dilute the original slogan's impact and make it harder to maintain a strong, distinctive brand.

Additionally, derogatory or satirical versions of the slogan can undermine the original message. For instance, slogans like "Make America Hate Again" or "Make America Gag Again" use similar phrasing to convey opposition to Trump's message. While freedom of speech protects such expressions, they pose challenges for trademark holders attempting to control the use of their slogans.

Moreover, the sheer volume of applications for similar slogans can create a backlog at the USPTO, delaying the approval process and complicating efforts to secure exclusive rights. This situation underscores the importance of having a robust legal strategy to monitor and address potential infringements.

Trademark Rights and Political Figures

Political figures often navigate the complex landscape of trademark rights, seeking to trademark phrases associated with their campaigns. This underscores the importance of understanding the intersection between public figures, political speech, and trademark law.

The criteria for trademarking phrases or slogans related to government or political issues are meticulously scrutinized to ensure they meet the legal standards for trademark protection. The USPTO requires written consent from a living individual if a trademark consists of or comprises a name, portrait, or signature that identifies that person.

This is stipulated under Section 2(c) of the Lanham Act, which states that the PTO must deny registration to a trademark if it “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” This provision ensures that individuals have control over the use of their names and likenesses in trademarks. For political figures, obtaining this consent is crucial, as failure to do so can lead to the rejection of the trademark application .

The Case of "Trump Too Small"

A recent notable case involves California attorney Steven Elster, who sought to register the phrase "Trump Too Small" for use on clothing, referencing a joke made by Sen. Marco Rubio during the 2016 campaign. Since Donald Trump did not consent to this phrase, the USPTO rejected the application. The case is now before the Supreme Court, with Elster arguing that preventing him from trademarking the phrase violates the First Amendment's freedom of speech. While it's unlikely the trademark will be registered based on oral arguments, the case highlights the complex interplay between trademark law and political speech.

The Role of Commerce in Trademarking Political Slogans

A key consideration in trademarking a political slogan is its use in commerce. The primary function of a mark is to identify and distinguish the source of goods or services to consumers. Therefore, a political slogan must be used in a commercial context to qualify for trademark protection. This requirement emphasizes the role of business activities in the process, whether it’s promoting political ideas through merchandise or using a phrase to symbolize the services offered by an organization.

Types of Slogans and Their Eligibility for Trademark

Understanding the different types of slogans and their potential for trademark protection is crucial. Not all slogans are created equal, and their eligibility for trademark protection can vary based on their originality, distinctiveness, and connection to the goods or services they represent. The United States Patent and Trademark Office evaluates each slogan on a case-by-case basis, considering these factors to determine if they qualify for protection under trademark law.

Case Study: "Make America Great Again"

The "Make America Great Again" (MAGA) slogan, popularized by Donald Trump during his 2016 presidential campaign, serves as a significant case study. Despite being a political slogan, Trump successfully registered it as a trademark. This registration covers various goods and services, including political action committee services and fundraising. The success of MAGA as a trademark highlights several key factors in trademarking political slogans:

  1. Distinctiveness: MAGA became widely recognized and associated with Trump's campaign, gaining distinctiveness over time.

  2. Commercial Use: The slogan was used on a variety of merchandise, from hats to bumper stickers, reinforcing its use in commerce.

  3. Legal Scrutiny: The trademark faced scrutiny and challenges, particularly around its function as a source identifier and its merely informational nature.

Despite its registration, MAGA's journey underscores the complexities and challenges of trademarking political slogans. It also illustrates the potential for such trademarks to become entangled in broader political and legal debates.

Challenges and Legal Considerations

The USPTO has taken a hard line against the registration of political slogans in recent years, often arguing that they fail to function as trademarks. This resistance stems from the nature of political slogans as being merely informational or ornamental. For instance, slogans like "Stop the Steal," despite their widespread use and recognition, face significant hurdles in achieving trademark status.

John Halski, a trademark attorney, highlighted the inconsistencies in the USPTO's approach. He argued that the USPTO should adopt a more nuanced stance, considering the context in which a political slogan is used and how it is perceived by consumers. The case of "No More RINOs!" illustrates this point, where the trademark was initially approved but later refused on the grounds of being merely ornamental and informational.

Moreover, the USPTO's refusal to register "Black Lives Matter" for various goods underscores the broader implications of the failure-to-function refusal. This decision was based on the slogan being perceived as a common political message rather than a unique source identifier.

Broader Implications of Trademarking Political Slogans

The tension between political and commercial speech plays a significant role in the debate over trademarking political slogans. Political speech is inherently protected by the First Amendment, whereas commercial speech can be more easily regulated and controlled. This dichotomy creates a complex landscape for trademark applications involving political slogans.

Ralph Nader's Campaign Example

For instance, Ralph Nader's 2000 presidential campaign used a television ad that borrowed a theme from MasterCard's "Priceless" ads, highlighting the intersection of political and commercial speech. The court dismissed MasterCard's claim of dilution, recognizing Nader's use as noncommercial political speech.

Political slogans like "Make America Great Again" bridge this gap, functioning both as political rallying cries and commercial trademarks. The USPTO's approach to such slogans must balance these dual functions, ensuring that trademarks do not infringe on the fundamental principles of free speech while providing clear guidelines for their commercial use.

Conclusion

Trademarking a political slogan involves navigating a unique set of challenges, blending elements of political speech, public interest, and commercial use. Representative Jasmine Crockett's attempt to trademark "Bleach Blonde Bad Built Butch Body" under both clothing and political consultancy categories highlights these complexities. While her application for clothing items (Class 25) may likely be approved due to its commercial nature, the application under political consultancy (Class 35) raises significant questions about the balance between political speech and commercial use.

This dual approach underscores the importance of understanding how different trademark classes can impact the protection and enforcement of political slogans. With the guidance of an experienced trademark attorney, individuals and organizations can effectively navigate these challenges, ensuring their political slogans are protected under federal law. By doing so, they can safeguard their campaign's brand while respecting the nuances of political discourse and public figures' rights.

Securing a trademark for a political slogan not only provides legal protection but also helps maintain brand consistency and support fundraising efforts. However, it is essential to consider the potential drawbacks, such as the proliferation of similar or derivative slogans that can dilute the original message. As demonstrated by both the Obama and Trump campaigns, a well-executed trademark strategy can play a crucial role in the success and longevity of a political movement.

FAQs

  1. Can you trademark a political slogan?

    • Yes, but it involves navigating complex legal considerations. The slogan must be distinctive and used in commerce to qualify for trademark protection.

  2. What are the benefits of trademarking a political slogan?

    • Trademarking provides legal protection, preventing others from using the slogan without permission. It can also help in branding and fundraising efforts.

  3. What are the challenges in trademarking a political slogan?

    • The USPTO often argues that political slogans fail to function as trademarks because they are merely informational or ornamental.

  4. Can political figures trademark their slogans?

    • Yes, political figures often trademark phrases associated with their campaigns. However, this process is subject to legal scrutiny to ensure compliance with trademark laws.

  5. What is the significance of the "Trump Too Small" case?

    • The case highlights the complex interplay between trademark law and political speech, with potential implications for First Amendment rights.

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