by Paul Alan Levy
During the 2016 election cycle, the slogan “Keep America Great” emerged as a counterweight to the Make America Great Again slogan on which candidate Donald Trump was campaigning. A fellow named Andreas Mueller tried to capitalize on that development by reserving the slogan as his own trademark. The Trademark Office, properly in my view, rejected Mueller’s effort on the ground that political slogans cannot be taken out of the public domain through the trademarking process.
Its initial rejection was supported by several images showing widespread use of the slogan by various vendors of shirts, hats, and mugs -- even a cell phone case
but its subsequent action (after Mueller tried to respond to the initial rejection) was more definitive: “Registration is refused because the applied-for mark merely conveys an informational social, political, religious, or similar kind of message . . . Slogans or terms that merely convey an informational message are not registrable. . . . [T]he applicant’s slogan is commonly used as a counter to the “Make America Great Again” phrase, and thus functions to advocate for openness and inclusiveness, among other things. Because consumers are accustomed to seeing this slogan or term commonly used in everyday speech by many different sources, the public will not perceive the term or slogan as a trademark or service mark that identifies the source of applicant’s goods and/or services but rather only as conveying an informational message.”
Late last week, however, the Trump for President filed its own trademark application, indicating that it intends to adopt the slogan as its own (and, thus, prevent other people from using it). Leaving aside how America became great again even before the candidate claiming that he was needed to restore its greatness took office, it remains to be seen whether Trump’s Commerce Department appointees stand up to their boss and declare that sauce for the goose is sauce for the gander.