Trump Wanted to Trademark “Rigged Election.” Why It Didn’t Work
In the final days of their work, the House select committee investigating the January 6 attack on the Capitol released a trove of documents. Among them were records showing that Donald Trump sought to have the term “Rigged Election!” trademarked after his loss to Joe Biden. With the leader of the Free World spearheading the endeavor, why exactly is rigged election not the property of the former president?
January 6 Committee and Trademark Interest
In an email sent to Jared Kushner just days after Joe Biden was declared the winner of the presidential election, former Trump aide Dan Scavino told Kushner that Trump wanted to “own rights” to “Save America PAC!” and “Rigged Election!” Kushner forwarded the message to Eric Trump, attorneys for the campaign, and the former president’s chief financial officer. The January 6 House committee obtained these messages.
A reply to Kushner discussed the registration of the Save America PAC web address — which would not automatically create a trademarked domain name — but less discussion centered around the idea of registering “Rigged Election!” with the U.S. Patent and Trademark Office (USPTO). Still, Donald Trump posted “more [and] more people will not accept this Rigged Election!” to Twitter just one day after Scavino sent Kushner the email.
Over two years later, however, the term is not found through a trademark search on the Trademark Electronic Search System (TESS). So, what happened? How could arguably the most powerful man on Earth not be able to secure trademark rights over a term he used hundreds of times in 2020 and beyond? It likely comes down to basic trademark law.
Registration Problems With “Rigged Election”
Judging from a search on the USPTO website, there was never a legitimate attempt to register the term “Rigged Election!” There are many reasons this may be the case. It’s very possible that the idea could’ve simply been lost in the shuffle of the mayhem that unfolded after the 2020 election. However, the likelihood that trademark registration would’ve been granted — even if applied for — is very much in question.
The biggest problem for the former president is that trademarks are meant to identify the source of goods and services. For instance, the golden arches of McDonald’s immediately tell people where they’re eating. Conversely, “rigged election” merely describes what some people believe happened in 2020. It was widely used among the conservative movement, and a Google search of the exact term returns over 370,000 results.
Thus, it’s hard to envision a scenario where Donald Trump could claim sole rights to the term. Of course, it really all comes down to distinctiveness. If the campaign could’ve shown that “Rigged Election!” had acquired distinctiveness in the minds of consumers related to some good or service, it’s possible that the term could be a trademark. However, commercial use or a bonafide intent to use must also be present, and there’s little evidence that this was the case.
What If Rigged Election Was Trademarked?
There’s often confusion over what owning a trademark actually means. Had the USPTO issued a registration to Donald Trump, it would not have prevented others from using the term. A great example of this in action is the fact that “Santa Claus” is actually trademarked. In reality, a trademark only prevents others from using the trademark in a way that may confuse consumers or damage a brand.
This is how multiple companies can share the same name. After all, no one will confuse the source of Delta Faucets and Delta Airlines. Had Donald Trump been able to register “Rigged Election!”, he likely could not have stopped others from using the term in a manner unrelated to whatever product or service he listed in a hypothetical application.
