United States Trademark Trial and Appeal Board Refuses Registration of “Trump Too Small” Mark
It goes without saying, the charm attached to the name of an acclaimed person or a celebrity is extraordinary. Besides a plus-plus to the brand image, a linkage is formed, especially in a country like India where celebrities are not only admired but in a way, worshipped. This is why we see businesses carrying those renowned names flourishing more than the ordinary ones. This entire strategy give rise to a thought, isn’t it unfair to the established persons whose name is being used? In a way it definitely is, but the Indian Trademark Laws do not believe so and accordingly there is no such provision in the Act of 1999 barring registration of a name. On the practical front, celebrities are becoming pretty active in acquiring registrations for their names to prevent further misuse.
On the contrary, Laws of the United States are somewhat adamant when it comes to ordinary application of celebrity names. Section 2(c) of the Lanham Act, the principal trademark statute, clearly prohibits registration of a mark that “consists or comprises a name, portrait, or signature identifying a particular living individual except by his written consent”. Recently, a plea was raised before the United States Trademark Trial and Appeal Board (TTAB) by an applicant seeking to register “TRUMP TOO SMALL” mark.
The applicant Steve Elster first approached the Examining Attorney for registration of his “TRUMP TOO SMALL” mark under International Class 25 for goods including “Shirts; Shirts and short-sleeved shirts; Graphic T-shirts; Long-sleeved shirts; Short-sleeve shirts; Short-sleeved Serial №87749230–2 — shirts; Short-sleeved or long-sleeved t-shirts; Sweat shirts; T-shirts; Tee shirts; Tee-shirts; Wearable garments and clothing, namely, shirts”. However, his application was rejected under Section 2(a) on the ground that the mark portrays a false connection with President Donald J. Trump as well as on absence of a written consent by the renowned person as explicitly provided under Section 2(c).
During the appeal proceedings, the Applicant made it clear that his mark “explicitly refers to declared presidential candidate and President Donald Trump”. Despite such, he argued that the same is not abuse of Section 2(c) since under no circumstances the general public shall be deceived into believing that there exists a connection between the President and his goods. In his words, the entire mark is “the antithesis of what consumers would understand to be sponsored by, approved by, or supported by Donald Trump.”
A strong yet notable point was also raised in the appeal wherein the Applicant questioned the validity of the provisions stating that they violate his right to free speech as guaranteed under the First Amendment. Elster contended that the provisions are not logically incorporated since “Presidential candidates and current and former Presidents also invite widespread use of their names and identities in products and services that comment upon the candidates and Presidents in personal and/or political terms.”
On July 02, 2020, the Board opined that the provisions merely set out criteria for trademark registration and do not impose any control or restriction on freedom of speech. While commenting upon refusal under Section 2(c), TTAB agreed with the decision of the Examining Attorney and that the same must not be registered. However, it failed to make a false association argument under Section 2(a).
