Trademark Law Trumps Use of the Trump Name Without Written Consent

BY: DAVID BERNARDONI

Love him or hate him, President Trump dominates the news headlines and provokes passionate discussions taking place in the country today.  Thus, it’s no surprise that in the last two years entrepreneurs have increasingly sought to capitalize on the Trump name in connection with goods and services they seek to bring to the market.  Since August 2015, there have been 228 trademark applications submitted to the United States Patent and Trademark Office (“USPTO”) which include the “Trump” name.  Only 21 have been approved for registration.  Of the 21 trademark applications which were approved, Donald Trump or Ivanka Trump provided their personal written consent for 19 of those applications.  What about the other two approved trademark applications which included the Trump name?  They were logos for The Buffalo Soldier Motorcycle Club of Chicago, in which the phrase “7th Trump” appears in a very small portion of the crest logo.  Neither of the logos contain any apparent reference to an individual with the Trump name.

So why has the USPTO refused to register any trademark with the Trump name, without Donald or Ivanka Trump’s personal written consent?  It’s because the Trademark Act and numerous decisions by the USPTO’s Trademark Trial and Appeal Board have consistently held that a trademark registration will be refused if the mark consists of a name, portrait or signature identifying a particular living individual, unless that individual provides his or her written consent.

Using an individual’s name in a witty or clever manner will not avoid a refusal by the USPTO to register.  Thus, the USPTO has refused to approve applications for marks such as “Just Trump It” (a clothing line), “Trump The Board Game” (a board game), and “Trumptainment” (hats and t-shirts).

In short, it doesn’t matter if the name is Donald Trump, Barack Obama, Kate Middleton, Kim Kardashian or any other person known to the general public.  So long as the name is so well known that the public would reasonably assume a connection between the person and the “good and services” that are being trademarked, it will be denied unless the individual’s written consent is provided.