Even the Trumps Make Mistakes with Trademarks

Jan 9

This post is not intended to be political. Rather, I want to share some trademark tips using a recent news story (which may have been political). The story concerns President Trump’s request to register two phrases with the United States Patent and Trademark Office (USPTO) after the 2020 election.

Recently disclosed records from the January 6 Committee include transcripts from an interview with Jared Kushner. Relevant to this blog, were portions of the interview concerning trademarks. President Trump apparently wanted to register trademarks for the phrases “Rigged Election!” and “Save America PAC!”1 Mr. Kushner informed the committee that he received an email from former White House aide Dan Scavino days after the race was called in President Joe Biden's favor.2 Apparently, the email said: "Hey Jared! POTUS wants to trademark/own rights to below, don't know who to see —or ask...I don't know who to take to."3 Mr. Kushner enlisted the help of several people, including Eric Trump, who responded by saying that both web URLs were already registered, according to the transcript.4

After losing the election in November 2020, President Trump tweeted it was a "RIGGED ELECTION."5 On December 9, he posted on Truth Social that the election was "RIGGED." 6

The New York Post commented that “[t]he copyright requests likely had financial motivations, . . . ” and continued by saying that “Kushner did not say whether the campaign was successful in copyrighting ‘Rigged Election!’ or ‘Save America’ . . . , but neither phrase appeared in searches of the US copyright catalog on Friday.” 8

Several points stand out to me:

The information provided to and from Mr. Kushner
Registering URLs
The way President Trump used the phrases in his tweets
Referring to these phrases as copyrights

Information Provided

Several people in the chain of communication wanted to register the phrases “Rigged Election!” and “Save America PAC!” for the President. Although trademark rights arise from use, the USPTO allows applicants to file applications on an intent-to-use (ITU) basis. An ITU application requires the applicant to provide more information than the mark that is being applied for. For example, an ITU application requires identification of the owner and the identified goods/services. In this instance, was President Trump going to own the applications or would one of his entities? Likewise, what were the goods/services going to be? Was President Trump going to make and sell RIGGED ELECTION! branded beer or SAVE AMERICA PAC! branded paint? Probably not. But the goods/services need to be identified.

Two related considerations arise: trademark registrations—and some applications—are assignable. That is, you can sell them or give them away, etc. That is not the case for ITU applications. An ITU application cannot be assigned until the applicant pays a fee and proves the mark is used in connection with the goods/services. As for the fees, if the President intended to use the marks in connection with a large number of goods/services, the USPTO will charge significant filing fees. In the case of ITU applications, the USPTO charges a few hundred dollars per-mark-per-class of goods/services at the time of filing the application; $100 when the proof is submitted; and an additional fee(s) if the applicant requires an extension of time to use of the mark. The fees may not have concerned the President but they certainly impact smaller applicants with smaller budgets.

Registering URLs

The records show that Eric Trump responded to the request by stating that both web URLs were already registered. It is unclear whether Eric Trump responded that way as a matter of fact, or whether, he was under the impression that registering URLs is equivalent to registering your trademarks. Assuming the latter, he would be mistaken. Registering URLs is often a good practice in overall branded development and protection. However, URLs do not establish trademark rights and the process for registering a URL is different than the process of registering a trademark. In fact, there is federal law (i.e., the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d)) that creates a cause of action for registering, trafficking in, or using a domain name confusingly similar to, or dilutive of, a trademark or personal name. In short, if the goal was to treat the phrases as trademarks, registering the URLs would not substitute for registering the marks with the USPTO.

The Way President Trump Used the Phrases in His Tweets

It was reported that President Trump tweeted the phrase “RIGGED ELECTION” and that he posted the same or similar phrases on other social media platforms. Although using those phrases like the President did might generate interest, that use would not constitute sufficient trademark use to satisfy a trademark examiner. First, the USPTO—and federal trademark law—require that the mark(s) be used in connection with the goods/services. As stated above, Mr. Kushner was not aware of the goods/services. Likewise, the President’s tweet and social media posts do not appear to use the mark in connection with any goods/services.

Referring to These Phrases as Copyrights

The New York Post article incorrectly interchanged the terms “trademarks” and “copyrights.” A copyright is an exclusive right to copy, distribute, adapt, display, and perform a creative work. Although some copyrights are literary (e.g., books, poems, blogs), two words are not eligible for copyright. Trademarks, by contrast, identify the source of specific goods/services. Trademarks include various names, logos, taglines, sounds, product packaging and design, etc. If someone searched the US copyright catalog for these phrases, they would not find any results unless applications were filed for the wrong form of IP protection.

Conclusion

This post is not intended to take swings at the President and his team—or the New York Post. The mistakes identified are common and hopefully illustrate some points that you can use in your IP protection efforts.

1 https://www.businessinsider.com/donald-trump-asked-jared-kushner-to-trademark-rigged-election-2022-12, accessed January 6, 2023.

2 Id.

3 Id.

4 Id.

5 https://nypost.com/2022/12/30/jared-kushner-trump-wanted-rigged-election-trademarked/, accessed January 6, 2023.

6 Id.

7 Id.