Katherine Kerrick, ‘Trade(mark) America Great Again: Should Political Slogans Be Able to Receive Trademark Protection?’

ABSTRACT
In late 2016, Donald Trump was granted trademark protection for his presidential campaign slogan, ‘Make America Great Again’. This registration is one of few – if not the only – political slogans registered as a trademark with the USPTO. Four years later, and four years after the completion of the presidential campaign which effectuated the slogan, the MAGA registration is still live and President Trump and his campaign committee continue to sell merchandise featuring the slogan prominently. However, looking at the applications and the evidence presented therein, it is not clear that the MAGA slogan constitutes a phrase worthy of trademark protection. This Note examines whether the MAGA trademarks should have been granted by the United States Patent and Trademark Office. In Part I, the Note will look at the doctrinal issues specific to the MAGA applications, highlighting ways in which the registrations may be problematic. Part II discusses the broader issues these applications introduce, namely, the ever-present tension between political and commercial speech in trademark law, and whether political slogans should ever receive trademark protection based on the state of this debate. Lastly, in Part III, the Note examines how President Trump’s treatment of his slogan may be illustrative of a larger issue that has been controversial in the first half of the Trump presidency: emoluments. In essence, this Note considers how Donald Trump is breaking the mold in terms of how presidents navigate and distinguish between their business and their politics.

Katherine Kerrick, Trade(mark) America Great Again: Should Political Slogans Be Able to Receive Trademark Protection? 18 University of New Hampshire Law Review 309 (2020).

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