Trump Trademark Victory in China Sparks Ethics Questions
By Joseph Mandour on February 23, 2017
Orange County – Last week, China’s trademark review board awarded President Trump and his organization a trademark that Trump had been seeking for nearly a decade. Namely, the Trump organization has been awarded trademark protection for the use of the Trump name in the construction industry. China’s action, coupled with Trump’s decision to place his assets in a trust run by his adult sons, has sparked an ethical predicament that is drawing sharp debate.
The crux of the argument is whether President Trump is in violation of the foreign emoluments clause of the Constitution. Article I, Section 9, Clause 8 of the Constitutional Clause reads as follows: “… no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
An emolument is, per Webster’s Dictionary, an advantage. The Trump Organization stands to gain a business advantage from the trademark committee’s decision. As President Trump still has ties to his organization through his sons, President Trump stands to gain financially from China’s action.
The timing of China’s decision is the cause for concern. The Trump Organization fought for this trademark, unsuccessfully, for nearly ten years. Then, in September of 2016, during Trump’s rise in political status in America, China reversed its longstanding position on the trademark. The question is, why? “China is going to want concessions from Mr. Trump, and this is now the first in what will be a series of efforts to influence him” stated Norman Eisen, a White House ethics counsel under President Obama.
The Trump Organization lawyers are objecting to the claim that President Trump will be influenced through China’s decision. They argue instead, that the Trump organization is merely protecting its trademark from someone who had been “squatting” on it improperly.
Furthermore, they argue that China’s decision had less to do with influencing the Presidency, and more to do with the rise in Trump’s fame. As Trump is now more famous in China, his fame gives him a stronger claim to the brand oversees.
Also, it is possible that the decision is... Read the rest
Trump Files Trademark for “Keep America Great” Re-election Slogan
By Joseph Mandour on February 2, 2017
Orange County – Days before taking the oath of office, Donald Trump filed a trademark application for the “Keep America Great” slogan for his re-election campaign. The slogan is intended to build off the 2016 slogan: “Make America Great Again.” This phrase, and particularly the baseball caps printed with the phrase, were central to Trump’s election.
Trump revealed his 2020 campaign slogan during an interview with the Washington Post. Immediately after revealing the slogan, he called in his lawyer and directed him to file trademark applications for “Keep America Great” and “Keep America Great!” Then he returned to the interview. The attorney obliged but there is little legal value in filing both since they are so similar.
“I am so confident that we are going to be [great], it is going to be so amazing,” Trump said. “It’s the only reason I give it to you. If I was, like, ambiguous about it, if I wasn’t sure about what is going to happen — the country is going to be great.” Trump’s trademark for the slogan was filed on January 18, 2017, and applies to goods and services such as advertising signs and apparel.
There are potential issues with the slogan, however. Trademark applications for “Keep America Great” and “Keep our America Great” were filed for apparel prior to Trump’s application. Also, the horror film “The Purge: Election Year” uses the phrase as its tagline. The film’s writer revealed that he chose the slogan in direct response to Trump’s 2016 election slogan which is something he should not have admitted since it is against his interest. For each application and use, Trump is likely to be able to show that his rights are superior due to his prior use and the fame of his trademark.
Trump began making moves to trademark the “Make America Great Again” slogan quickly after the 2012 election. The slogan was criticized by Democrats and the media, yet it seemed to perfectly encapsulate his campaign and became a... Read the rest
USPTO Denies Trademark Application for NHL’s Newest Team
By Joseph Mandour on December 22, 2016
Orange County – The NHL’s newest team – the Las Vegas Golden Knights – ran into legal trouble over its name less than a month after a big Vegas-style ceremony revealing the team name to the public. The trademark application that the team filed for its name was denied by the United States Patent and Trademark Office.
The refusal was due to an alleged likelihood of consumer confusion with a prior registered trademark. The name Golden Knights is already registered to the College of Saint Rose, a small private college in Albany, New York.
The USPTO Office Action claims that the NHL’s team shares the same name, a similar logo, and similarities in how the brands are marketed. While Saint Rose is a collegiate-level sports entity and lacks a hockey team, the school and the NHL team are both sports teams marketed to the same audiences in the same venues. The decision was made solely by the USPTO, with no input from the College of Saint Rose. The College of Saint Rose registered its trademark in 2004. The school has declined to comment on the legal issue.
Another potential player in the trademark conflict is the U.S. Army Parachute Teams, which have used the name Golden Knights since the 1960s. Their legal team is deciding whether to challenge the name.
The Las Vegas NHL team has until June 7, 2017 to file a response in its attempt to overcome the initial refusal. The team released a statement arguing that there are many examples of college sports teams and professional sports teams sharing the same name, such as the UCLA Bruins and Boston Bruins.
The NHL Deputy Commissioner said there are no plans to change the team’s name or logo, and that the NHL will give a response about why it strongly believes that the trademark should be registered. The team will continue to sell merchandise with the Vegas Golden Knights name and logo.
The team’s first game won’t occur until October 2017, but these legal issues could cause problems for the team now. The team is in the process of pursuing sponsorship deals, television rights, and building a fan base, all things the dispute can threaten. Without the trademark, the team may be limited in its ability to fight against unauthorized use of its trademark. Likewise its own use could sti... Read the rest
Trump Wins Major Trademark Battle in China
By Joseph Mandour on November 17, 2016
Orange County – Roughly ten years ago, in 2006, Donald Trump and the Trump Organization attempted to register his Trump trademark across numerous categories of goods and services in China. After numerous bumps in the application process, Mr. Trump has finally won his fight for the Trump name in China for real-estate-agent services in both the commercial and residential sectors.
Although Trump won the battle for real estate services, the Trump Organization may find more resistance for other goods and services. Of the more than 50 registered trademarks with the Trump name in China, only 21 are currently owned by Mr. Trump. The trademarks have been applied for in several different categories, clothing, beauty salons, pet care products, and golf courses, to name a few.
The beginning of this saga started in 2006 when he applied to register the Trump name in numerous different categories. One of the hiccups came in 2009 when China’s trademark office rejected part of Mr. Trump’s application because someone had already applied for it just weeks earlier. The services that already had the Trump trademark were “construction-information” services, or rather, services provided by real-estate agents. Mr. Trump was still able to obtain trademarks in the commercial and residential areas, for services such as repair and installation of air conditioners, heating systems, escalators, and installation of indoor furnishings and repairs.
Some of the categories that the Trump name is registered but is not owned by Mr. Trump include aquarium products, ammunition, explosives, and tennis rackets. During years of battling out the trademarks in court, Mr. Trump’s appeal was dismissed in 2015, a month before he announced his intentions to run for president of the United States. The Trump team reapplied for the trademark and won provisional approval this week.
In China, it isn’t uncommon for people to grab the trademark of overseas brands. The hope is that the United States companies will settle instead of battle in court to acquire the trademark. This happened to Apple Inc., who had to buy the trademark for the iPod in China. Whether or not the Trump Organization or Mr. Trump himself will use the trademarks they have secured is not known.... Read the rest
Supreme Court to Decide Whether Offensive Names Can be a Trademark
By Joseph Mandour on October 14, 2016
San Diego – The Slants, an Asian American rock band from Portland, Oregon, are taking their case to the Supreme Court which will decide whether the band can trademark its name. The band’s trademark application to the U.S. Patent and Trademark Office was refused because the trademark office found that it is an offensive term.
The clash between free speech and trademark protection has drawn wide attention in part because the Washington Redskins football team is locked in the same dispute. According to Dan Snyder the owner of the Washington Redskins, “Ninety percent of Native Americans feel that the name isn’t offensive and shouldn’t be changed.” Snyder claims that the team was named after William Dietz who coached the inaugural Boston Redskins team 80 years ago, before it moved to Washington. Dietz was a Sioux Indian, and the team was named in his honor, “out of respect for Native American heritage and tradition.”
The band name the “Slants” stems from an offensive term referring to Asian Americans related to their eyes. The trademark dispute arose when Simon Tam, the founder of the band, chose the name the Slants to co-opt and make fun of a slur directed at Asians.
When Tam and the Slants appealed the Trademark Office refusal, a federal appeals court reviewed a 1946 law that tells the government to reject trademarks that “disparage… persons, living or dead.” The judges then declared that the law violated Tam’s right to free speech. Lawyers for Tam said the trademark office has been inconsistent in how it has applied the law. A well-known musical group of the 1980s and 1990 was N.W.A., which fans knew stood for Niggaz Wit Attitudes. The Slants make the argument that while such terms may be used in a disparaging way, the group’s fans did not interpret the name as disparaging.
Simon Tam and his band members are claiming they are not disparaging Asian Americans. The band claims they are doing the opposite. Instead, they think they are appropriating a slur and using it as a badge of pride.
The results of the case will likely be relevant to the Washington Redskins case, and may set the new precedent for similar trademarks.... Read the rest
#Chargers File for Los Angeles Chargers #Trademark
By Joseph Mandour on January 26, 2016
San Diego – The San Diego Chargers recently applied for the “Los Angeles Chargers” trademark, a sign that the Chargers have a bona fide intent to leave San Diego and move to Los Angeles. The Chargers filed trademark application for both “Los Angeles Chargers” and “LA Chargers” because they are currently in negotiations for a potential move to Los Angeles.
The St. Louis Rams already received approval from the NFL to move to Inglewood (about 10 miles from downtown Los Angeles), but the San Diego Chargers were granted one year to reach an agreement with the Rams to share the Inglewood stadium. If they reach an agreement, the Chargers would relocate and become the Los Angeles Chargers.
Two days after the Rams’ relocation was approved, the Chargers filed the trademark applications. If the applications are approved, in addition to entertainment services the Chargers would own the trademarks for a variety of merchandising including video games, jewelry, helmets, and toys. At this time, the rights to website URLs lachargers.com and losangeleschargers.com have already been claimed by another company.
These products, and other forms of merchandising, are a large generator of profit NFL teams. In 2010, the total revenue from the merchandise sales of the 32 teams reached $2.1 billion. Because the NFL utilizes revenue sharing, each team does not simply get the revenue generated from its individual merchandise sales. Instead, the merchandise revenue is totaled (with the exception of the Dallas Cowboys, who are not involved in the revenue sharing agreement) and redistributed equally among the 31 teams.
While the teams agreed to remain tight-lipped about their negotiations and not to disclose details about the discussions publicly, the status of the talks have already begun to leak out. First it was reported that a deal was close and could be finalized in as quickly as one week. However, the most recent report from the negotiations is that the teams may have reached an impasse. It has been speculated that, in the end, the Rams owner has little incentive to reach an agreement to have the Chargers join the Rams in Los Angeles. After all, why would the Rams want to share the Los Angeles market with another team? Indeed, the mayor of Los Angeles re... Read the rest
Jeb Bush Abandons Trademark Application for “Jeb!”
By Joseph Mandour on January 8, 2016
San Diego – While many presidential candidates (most notably Donald Trump) fight battles to maintain and protect trademarked slogans, Jeb Bush took a different approach. He recently abandoned the Jeb! trademark he has used thus far during his campaign.
Bush first began using the “Jeb!” logo in his 1994 campaign for governor. Jeb stands for John Ellis Bush which is Jeb’s real name. Most people criticized the logo for its lack of originality and mediocre graphic design, but Bush stuck with the logo. Throughout his political career, Bush used his enthusiastic “Jeb!” logo, and eventually applied for trademark rights in 2002.
Although criticized for his decision, Bush not only continually used his logo throughout this career, but actively worked to protect it. In 2010, his trademark lawyer accused Democratic State Senate candidate Deborah Gianoulis of trademark infringement by campaigning with a “Deb!” logo.
This year, when the trademark lapsed, Bush reapplied for trademark rights. Some believe now more than ever the logo is important to Bush’s campaign given his efforts to distance himself from the Bush political dynasty.
The trademark application was for exclusive use of the logo on a variety of products the Bush campaign thought their supporters would want to buy, such as money clips and golf towels. A corporation titled BHAG LLC (standing for “Big Hairy Audacious Goal,” a phrase from one of Bush’s beloved business books) filed the trademark. While BHAG LLC, is owned by Bush, the United States Patent and Trademark Office requested written consent from Bush to use his name. The request, made in April, set a deadline of six months.
Bush never replied, letting the “Jeb!” logo trademark application go abandoned. Technically, Bush can restart the application process any time.
Given the steady decline in Bush’s polling average, th... Read the rest
The Slants win, Ban on Disparaging Trademarks and Washington Redskins Ruling Now in Doubt
By Joseph Mandour on December 31, 2015
Los Angeles – An Asian rock band from Portland wanted to trademark the name of their group “The Slants,” hoping to turn the racial slur into a phrase of empowerment. Instead, they got a lengthy legal battle eventually resulting in a significant change to trademark law, which may impact the Washington Redskins’ trademark case.
The Slants and Redskins cases involve an aspect of the Lanham Act, a 1946 trademark law. Section 2(a) prohibits the registration of trademarks that contain “matter which may disparage …persons…institutions, beliefs, or national symbols.” The section provides the U.S. Patent and Trademark Office the power to refuse trademark registration if the word/phrase is deemed offensive, which occurred when the rock band attempted to trademark “The Slants.”
The Slants case went to the United States Court of Appeals for the Federal Circuit. The appeals court recently ruled that Section 2(a) is unconstitutional and held that the government banning offensive trademarks is a First Amendment violation.
The judges’ majority wrote that “words-even a single word-can be powerful. Mr. Simon Tam named his band The Slants to make a statement about racial and cultural issues in this country. With his band name, Mr. Tam conveys more about our society than many volumes of undisputedly protected speech.”
With the section of the Lanham Act struck down, “The Slants” can now register their band name. But the impact of the court case goes beyond the rock group. The National Football League team the Washington Redskins is in its own trademark battle, which may be impacted by the court’s ruling in “The Slants” case.
In the Redskins case, a federal judge ordered the cancellation of the team’s trademark in July. The judge followed the Lanham Act’s section 2(a) that prohibits trademark protection for offensive names. Given that section has now been held unconstitutional, the Redskins may be able to keep its federal trademark registrations after all.
The team is also suing a group of Native Americans who are fighting its trademark registrations. The case will come before the U.S. Court of Appeals f... Read the rest
Redskins Lose Trademark Battle
By Joseph Mandour on July 14, 2015
San Diego – Six Trademarks owned by the Washington Redskins are in the process of being cancelled due to a Federal court ruling. Last year, Navajo activist Amanda Blackhorse along with four other Native Americans sought to cancel the team’s Trademark Registrations due to an offensive connotation of the name “Redskins”. This was successful as the TTAB (Trademark Trial and Appeal Board) ruled in favor of Blackhorse that the registrations were disparaging and should be cancelled.
District Judge Gerald Bruce Lee recently affirmed the previous ruling. However, Judge Lee made a point to state that the Redskins are still free to use the name as they wish. The ruling would simply prevent any federal legal protection relating to the Redskins trademark.
This was another big win for a large group of Native American people that have long protested the Trademark registrations owned by the Redskins. A key aspect boosting their battle was the Lanham Act, specifically quoting the section that “bars trademarks that may disparage or bring people into ‘contempt or disrepute.’”
Attorneys for the Washington Redskins tried to argue that it was within the team’s first amendment right of free speech to use the name as they please. Judge Lee disagreed. Many people directly involved with the team stated their disapproval of the court ruling. The team intends to continue to fight the adverse rulings. Redskins’ President Bruce Allen commented on the ruling by stating that he was surprised with the results, and plans to appeal the district court’s decision. He also stated that the team has used the name for more than 80 years.
In addition, Robert Raskopf, the Redskins’ trademark attorney, argued that the NFL team has spent a lot of time and millions of dollars over the years to invest and protect its intellectual property rights, and a loss in the higher court would be a big upset to the team.
Daniel Snyder, owner of the Redskins, commented that he would never change his team’s name. Instead, he considers the name to be an “honor” to the Native American people.... Read the rest
GM and Yamaha Agree to Co-exist with use of “Bolt” Trademark
By Joseph Mandour on June 10, 2015
Los Angeles – Despite less than stellar sales and perceived high prices, auto makers continue to release new electric vehicles. This is partly due to the fact that manufacturers are under a government mandate to increase the average miles per gallon of their fleets.
Chevy of GM Motors recently unveiled its new electric car at the Detroit Auto Show. Building on the Volt name, the new car is called the “Bolt” and boasts a 200-mile range once fully charged. Tagged with an estimated asking price of around $35,000, GM has promised that this new model would be available to consumers within two years.
To protect the name, GM submitted a U.S. Trademark Application in August of last year for “Chevrolet Bolt.” The application was filed in regard to “motor land vehicles, namely, automobiles.” However, GM ran into an unexpected road bump with the with the model’s name.
In 2012, Yamaha submitted a Trademark Application for “Bolt” to be the name of its newest motorcycle model. Yamaha’s Bolt trademark application registered in 2013 and thus was cited against GM’s Chevrolet Bolt application. In an Office Action, the U.S. Patent and Trademark Office stated that the uses were too similar and thus likely to create consumer confusion. To make matters worse, GM’s application was also suspended due to prior pending applications for BOLT CUSTOM TRUCKS AND MANUFACTURING and a related design trademark. Again the reason cited was the potential for consumer confusion.
It now appears that GM was able to overcome all refusals by the U.S. Patent and Trademark Office since the Chevrolet Bolt application was recently approved for publication. Barring a third party objection, it appears that it will register.
To overcome the Yamaha refusal, GM entered into a consent agreement with Yamaha in which both parties agreed that consumer confusion was not likely. GM was able to overcome the refusal as to the BOLT CUSTOM TRUCKS AND MANUFACTURING trademark application by arguing that the trademarks were sufficiently different such that confusion was not likely.
Despite the legal wrangling, some car enthusiasts still ... Read the rest