Trump’s Trademark Issues

How long has Trump been planning this?

MAGAApparently Mr. Trump decided he liked the sound of “Make America Great Again” as  far back as 2012, when he first filed an application for the phrase with the Trademark Office (Serial 85783371).   However, in the application he seems to be  anticipating using it for a Political Action Committee, rather than for his own candidacy. The required list of services he listed were as follows:

  • Political action committee services, namely, promoting public awareness of political issues. (IC 035)
  • Fundraising in the field of politics. (CIC 036)

However he was apparently not ready to use it back then, as he did not finalize the registration until earlier this year – about a month before he formally announced.

Trademark Issue #1

Subsequently, on August 13th two new filings  (86724115 , 86724213were made by him for the phrase and include an exhaustive list of such items as  

  • Bumper stickers; decorative decals for vehicle windows; stickers; advertising signs of papers; advertising signs of cardboard; placards and banners of paper or cardboard; printed publications, namely, pamphlets providing information regarding Donald J. Trump as a political candidate; posters; pens
  • Clothing, namely,sweatshirts, T-shirts, tank tops, long sleeve shirts; headwear, namely, caps and hats; baby clothing, namely, one piece garments; children’s clothing, namely, t-shirts
  • Campaign buttons, and
  • interestingly a series of items referencing “Political campaign services”.

This last items underscores an interesting question. Why include this if he already had the rights for “Political action committee services” –  while I won’t pretend to know, the answer may lie in the fact that a Political Action Committee recently popped up using the same name which begs the question that if the trademark is Trump’s – he is either coordinating with the PAC, or  he needs to police it and demand they change the name in order to preserve his rights.

Trademark Issue #2

On August 5, 2015, a another party filed an application for “Make America Great Again” for 

  • All purpose sport bags; Backpacks; Duffel bags; Knapsacks; Tote bags; Umbrellas and
  • Footwear; Hats; Jackets; Pants; Shirts; Short-sleeved or long-sleeved t-shirts; Shorts; Socks; Sweat shirts; Swim wear

This application was filed as an intent to use application, while Trump’s August 13 application alleged prior usage as of 4/12/2015.   Trump’s second August 13 application however, listed the identical items “All purpose sport bags; Backpacks; Duffel bags; Knapsacks; Tote bags; Umbrellas” as being as intent to use.  So what? – you might ask. Strictly speaking, this would normally mean that the other filer would have priority over any claim has on exclusive rights to the phrase for the purposes of items like these., but the fact that he has now filed an application for identical goods hints that he will oppose the issuance of other applicant.

I also think it is safe to say that Mr. Trump plans to use this application to try and stop anyone from using the phrase on any merchandise from now on.  Ebay is Awash in items already . The real question will be if he can be successful in enforcing the mark for these items (See trademarking a phrase for tee-shirts).



Ten Cute Cat Trademarks

Ten Cute Cat Trademarks

Because cats make everything more entertaining.  (search using (03.01.04)[DD]  and  (2)[MD]).  A sample of 10 recent applications for cat related trademarks for your viewing pleasure.

1.  Content Kitty (such a peaceful face)

Mark Image
Serial Number: 86468722 Description of Mark The mark consists of the face of a cat.


2.  Lethal Kitty (HiYA!!)

Mark Image
Serial: 86330685 Description: The mark consists of a stylized standing white cat with yellow eyes and wearing gray pants, gray shoes, and a blue jacket that has white trim, two visible white buttons and a white Chinese language symbol. The cat is standing upon a black oval.


3.  Hello Kitty (one of many recently filed applications)

Mark Image
Serial: 86582292 Description: The mark consists of the face of a kitty.


4. Butt Kitty (Ok –  this one creeps me out a little)

Mark Image
Serial: 86468165 Description: The mark consists of a feminine cat facing {walking} away, with tail up exposing a heart shape on the butt.


5. Knitted Kitty (this one is for “knitted underwear” -’nuff said -cool design)

Mark Image
Serial: 86426751 Goods: Knitted underwear.


6. Hipster Kitty (jeez – everyone knows cats prefer the chevron)

Mark Image
Serial: 86543982 Description: The mark consists of the stylized image of a cat’s head with a mustache.


7. Creepy Kitty (with dog overlord)

Mark Image
Serial: 86484950 Description: The mark consists of Cat having a primarily orange-brown fur coat and white chest laying in front of a seated dog having a primarily grayish-tan and brown fur coat and black nose, where both the cat and dog are depicted with large human-like smiling mouths with red lips and bright upper and lower white teeth showing, and a radiating sparkle emanating from the upper right-hand corner of each mouth.


8. Masked Kitty (what possible advantage would a cat have trying to pretend he’s a dog?)

Mark Image
Serial: 86420033 Description: The mark consists of a stylized cat wearing a dog mask.


9. Anthropomorphic Kitty (why no shoes on the hands??)

Mark Image
Serial: 86057456 Description: The mark consists of stylized image of a kitten wearing a dress and tennis shoes.


10.  Plain old Cute Kitty (just because)

Mark Image
Serial: 86056395 Description: he mark consists of a pictorial representation of a kitten in a woman’s hands. There is a purple arc to the left of the kitten. The kitten’s fur is white, black and gray. The kitten’s nose is pink and its eyes are blue and black. The woman’s hands are shades of tan. Both the kitten and hands have white highlights. The area between the kitten and the purple arc is white.


content kitty

Color-only Trademarks

What do UPS, Tiffany and Co., and Owens Corning have in common?  The mere sight of the color of their product (Pullman Brown, Robin’s Egg Blue, and Pink) brings to mind who they are without ever having to place a logo or word on their products.   These marks demonstrate how real people shop for goods and services and how trademarks are about providing a potential consumer resources to identify the source of the goods and services they are purchasing – while preventing others from using those identifiers to create consumer confusion.

Color Trademarks

Color TrademarksThe leading case involving color as a trademark is  Qualitex Co. V. Jacobson Prods. Co. (514 U.S. 159, 161, 163, 115 S. Ct. 1300, 131 L.Ed. 2d 248 (1995)), which noted that a color can sometimes serve as a trademark by itself  “when that color has attained ‘secondary meaning’ and therefore identifies and distinguishes a particular brand (and thus indicates its ‘source’).”   The Court went on to provide that if the color serves a “function” then it by definition is not protected by trademark law.  Function is broken out into “utilitarian” and “aesthetic” functionality – this is largely a nod to the availability of other areas of intellectual property such as patents (dealing in realm of utility), and copyright (entwined with issues of aesthetics) which are designed for these  uses.  What is left is color used as a source identifier – clearly within the scope of trademarks.

Courts, however, recognize that such use is limited and has potential to be damaging to many industries if overused, and as a result have taken the position that color by itself is not inherently distinctive, and as a result most color-only marks will have had to acquire distinctiveness through actual use.   This means that new users of a color, wishing to register color-only marks are limited to filing applications on the supplemental register until such time that they can show the mark has acquired distinctiveness.

Call 612-414-3113 to discuss how I can help you with your trademark and copyright related matters.

Additional Resources


I have a great idea for a tee-shirt!!!

Tee-Shirt Trademarks

I have a great idea for a tee-shirt – can I register it as a trademark???

Short answer – probably not.  The main issue with whether a slogan or word  operates as trademark is how it is used.   This is especially true of tee-shirts.

If the mark / slogan is just printed on a shirt – no protection – the Trademark Office deems that as being “merely ornamental” (there is an exception when the mark is also used for other products or business name).  However if the mark / slogan is also used to identify the tee-shirt company, it may serve as a trademark and be registered (i.e. it is a “source identifier”) – the only caveat is that you would need to show it being used in that manner rather than just emblazoned on the front.  Showing the mark this way can be done be showing the phrase on things like the name of an online store, packaging, an inside-tag, or a hang-tag.

So “Peanuts for Everyone” emblazoned on the front of a shirt – likely not a trademark.  PEANUTS FOR EVERYONE brand tee shirts, with slogans like “Peanuts for Everyone” on the front – trademark.

With that said, if “Peanuts for Everyone” is included in a design on the shirt; that particular design may have copyright protection, but the phrase by itself is unlikely to retain the protection.


You Own Devices Act proposed

You Own Devices Act

Congressman Blake  (R-TX) recently reintroduced to committee H.R.862, You Own Devices Act (YODA), to amend title 17, United States Code.  If enacted, the bill will provide that the first sale doctrine applies to any computer program that enables a machine or other product to operate.  Expect opposition to come from

Copyright Office Releases Comprehensive Music Licensing Study

LOC NewsNet Issue 567
February 5, 2015

Copyright Office Releases Comprehensive Music Licensing Study

The U.S. Copyright Office has released a comprehensive study, “Copyright and the Music Marketplace,” detailing the aging music licensing framework as well as the ever-evolving needs of those who create and invest in music in the twenty-first century. In addition to providing an exhaustive review of the existing system, the report makes a number of recommendations that would bring both clarity and relief to songwriters, artists, publishers, record labels, and digital delivery services.

“Few would dispute that music is culturally essential and economically important to the world we live in,” said Maria A. Pallante, Register of Copyrights, “but the reality is that both music creators and the innovators who support them are increasingly doing business in legal quicksand. As this report makes clear, this state of affairs neither furthers the copyright law nor befits a nation as creative as the United States.”

There is broad consensus across the music industry on a number of key points: (1) creators should be fairly compensated; (2) the licensing process should be more efficient; (3) market participants should have access to authoritative data to identify and license sound recordings and musical works; and (4) payment and usage information should be transparently available to rightsholders. But there is less agreement as to how best to move forward.

The Copyright Office’s recommendations address almost every aspect of the music landscape, including the existing statutory licenses, the role of performing rights organizations, terrestrial performance rights for sound recordings, federal protection for pre-1972 sound recordings, access to music ownership data, and the concerns of songwriters and recording artists. These recommendations present a series of balanced tradeoffs designed to create a more rational music licensing system for all.

The full report and executive summary are available on the Copyright Office’s website at

Copyright Office Announces Public Roundtable Discussions for Music Licensing Study

From the United States Copyright Office

NewsNet 542
May 5, 2014

The U.S. Copyright Office will hold a series of public roundtables to gather input for its music licensing study. The roundtables will take place in Nashville, Tennessee on June 4 and 5, 2014, in Los Angeles, California, on June 16 and 17, 2014, and in New York, New York, on June 23 and 24, 2014. The roundtables will offer an opportunity for interested parties to comment on the music licensing issues set forth in the Notice of Inquiry issued by the Office on March 17, 2014. Those seeking to participate in the roundtables should complete and submit the online form. Requests to participate must be received by the Copyright Office by May 20, 2014.

Pied Piper’s Trademark Problems

On a recent episode of HBO’s new show Silicon Valley, the hapless coders find themselves in a bind when they realize that the “placeholder” company name “Pied Piper, Inc.” was already in use by Pied Piper Irrigation, another California company. The problem is that they received a check from a venture capitalist in the name of the Pied Piper Inc. – humorous situations then ensue as the protagonist tries solve the problem – and then, I began ranting at the television to the chagrin of my wife.

Why, you might ask, does this drive me crazy? Not because it is a common and overused plot point, but more notable because it gets both state registration laws and trademark laws completely wrong by muddling the laws of business registrations and trademarks.

Someone already registered my business’ trade name – what do I? A trade name is the name used to identify the business. States have varying restrictions on registration of similar names when forming a new business – primarily, they need to see that the name (along with the designated business form – inc, corporation, limited liability, etc) is not already in use. This means that while an exact match of something like “Pied Piper, Inc.” will not be allowed, other variations might be. So in some states “Pied Piper, Corp”, “Pied Piper Holdings, Inc”, or even “Pied Piper 2, Inc. will likely be acceptable for registration of a different business. Some states even allow it to go as far as “Pied Piper Inc.” vs “Pied Piper Incorporated”. As an example, there is currently an active company registered in California with the name Pied Piper, Inc.” – there is also “The Pied Piper Exterminators, Inc.”, “Pied Piper Players, Inc.”, and “Pied Piper Play Center” – there are also suspended businesses using similar variation on the theme. Simply put, the standard of what variation of name is acceptable is not that high and the problem for the boys in Silicon Valley aren’t real in regard to the business trade name. In the TV show the issue came up because the protagonists had received a check made out in the name they had been using as a placeholder; the reality is that most banks aren’t concerned with minor variations in the corporate name and “Pied Piper IP Holding Company”, will most likely be able to cash a check made out simply to Pied Piper, Inc.

But that other company is using my trademark. On Silicon Valley, the episode moves forward to discover that the company trademark PIED PIPER is the company name of a nearby irrigation company. My response — so what? Trademarks are not simply the name associated with any business, but rather a name associated with specific goods or services. Is there any likelihood that someone buying software using the mystery algorithm that is the core of the tech companies’ product is going to confuse that it originated from the irrigation company services? – not likely. Both companies can simultaneously use the mark PIED PIPER without any concern of trademark infringement, because there is little likelihood of confusion by consumers.

But my trademark has to be the same as my trade name. Nope – not true – while the two are often related, there is no rule that says they have to be the same. The best example for this is Doctor’s Association, Inc. Who is Doctor’s Association? – well you probably know them better by their SUBWAY trademark. What this means is that our newly minted entrepreneurs can register whatever business name they want, and still operate under the trademark PIED PIPER, and there is no need for them to go and purchase the name from the cranky irrigation company owner.

So what is the take away here? – don’t take legal advice from TV sitcoms – then again I hope you already knew that. By the way, it is a funny show.

The Vivian Maier Dilemma

Vivian Maier (February 1, 1926 – April 21, 2009) was a nanny living in Chicago and New York during the 50’s and 60’s.  She was also a photographer whose work involved sizable numbers of photos taken of street scenes.  She was not publicly recognized as an artist until after her death and upon the discovery/purchase of her storage locker which contained over 150,000 unprinted negative, hundreds of rolls of un-developed rolls, along with a few thousand that had  been printed (leaving open the question of what she wanted produced).  Subsequently, the negatives were acquired by a handful of entrepreneurs, and select works are now being exhibited and sold as prints.  What is left out of this story is that she died largely without funds of her own, and that she died without any heirs.   The storage locker was sold because no one paid the storage fees.  So who owns the copyright in these photos?
Vivian died in Illinois a couple of years AFTER the negatives were sold at the storage auction.  In Illinois, like most states, if something of value is left by a decedent it “escheats” to the state.  However, as no one had ever heard of her as an artist before her death and the discovery and posthumous printing of her work, the photos largely fell through the cracks of the courts and state house.


Fast forward to the present and some of the owners of  the negatives  and prints found in that locker are apparently licensing the images under the claim that as the owners of the negatives, they are also the owners the copyright in the works – Appearing on one of their websites is the following:
    All photographs appearing on this website and in the archive of the Maloof Collection are copyrighted and protected under United States and international copyright laws. The photographs may not be reproduced in any form, stored or manipulated without prior written permission from the Maloof Collection.

While some have tried to twist the issue into whether the state should have the rights, in my opinion the issue of whether the state has rights is not really related to the storage locker, but rather to the fact that she died without a will. While it would be sad that she had no relatives to pass ownership to, the ‘escheat’ laws are there to help prevent property from just laying around for the first random person to snatch-up.  The contention that because someone owns the prints and negatives, they also owns the copyright is something of a concern and I think if the state or another reproducer of the negative challenges it, I believe they will lose.  If you remove the fact she has since passed away, I think most artist would be a little pissed if the buyers of their work started making prints. The copyright laws are quite clear that ownership of the physical item is distinct and separate from the intellectual property rights.


Additional Reading:

Authors Guild v. Google

After eight years of a trail and the appeals process, on Nov. 14, 2013, U.S. Court of Appeals Judge, Denny Chin, dismissed a suit by the Author’s Guild against Google for its’ digital scanning project where they began scanning millions of books and making snippets (not full books) available in its search results. His full opinion can be read here. The Author’s Guild has filed an appeal. The Author’s Guild claim is that this scanning alone violates those authors’ copyright. Google’s defense — the one that Judge Chin agreed with — was that it fell within the scope of Fair Use. Chin says in his opinion that, “…Google Books provide significant public benefits.”

Section 107 of Title 17 of the U.S. Code determines the nature of Fair Use. Fair Use allows for the use of copyrighted material for a variety of purposes — education, criticism, research, etc. The most relevant portion of the criterion to be met in this case was subsection 3, which looks at, “…the amount and substantiality of the portion used in relation to the copyrighted work as a whole…” Basically, you can use parts of a work when using it for a specified, and approved, purpose, but you’re not allowed to take all of it or cherry pick the most substantive parts.. Chin believes that the actions of Google with their project fits within this criterion of Section 107.

What does this mean for the average creative? Well, for one, your works, if published, your work could be scanned by Google and be made available, in part, online for Internet users to search. This means that works might soon begin to be more readily available online whether authors want it or not, or at least snippets of their work. It also means that in an age where anonymity is more wide-spread, that your work might also end up misappropriated by someone through similar means. The lines of Fair Use might very well be blurred with this ruling without further clarification of what constitutes a “substantial portion” of a work when a party decides to engage in mass archiving.

Additional Reading:
Why Google’s Fair Use Victory In Google Books Suit Is A Big Deal–And Why It Isn’t