Primaries are not the only thing Donald Trump has been winning as of late, and we have the United States Patent and Trademark Office to thank for that. On November 11, 2015, a U.S. Trademark examiner completed the final phase of Trump’s three year quest to trademark the phrase “Make America Great Again.” Despite being a prominent slogan in the Reagan campaign from over thirty years ago, Mr. Trump now has the exclusive right to use the phrase in commerce, particularly on t-shirts and hats (just like the ones he is often seen sporting on the campaign trail). Like Donald Trump himself, the road to gaining these intellectual property rights has been unconventional, and sheds light on course of the Republican primaries in more ways than expected.
According to records obtained from the Patent and Trademark Office, Mr. Trump actually applied to trademark “Make America Great Again” a mere six days after President Obama defeated Mitt Romney in 2012 to win a second term in office. The application stated the phrase would be used for “political action committee service, namely, promoting public awareness of political issues and fundraising in the field of politics.”
Not only does this suggest that Donald Trump was planning a presidential campaign long before most people would believe—it also undermines statements made by Mr. Trump about the now famous slogan. In March of 2015, two and a half years after filing for the trademark, Trump was quoted saying, “The line of ‘Make America Great Again,’ the phrase, that was mine, I came up with it about a year ago, and I kept using it, and everybody’s now using it, they are all loving it.
I don’t know, I guess I should copyright it.” He paused and added, “Maybe I have copyrighted it.”
It seems difficult to imagine that Mr. Trump is not aware of the phrase’s association with Reagan’s 1980 presidential campaign. As reported in the Wall Street Journal, after Reagan’s election Trump repeatedly sought to attach himself to the president, inviting him to various events including a 1983 opening of a Trump Tower and a LaToya Jackson concert (both of which President Reagan declined to attend). Trump contributed to Reagan’s re-election campaign and was even invited to a White House state dinner for King Fahd of Saudi Arabia. In a 2015 interview on NBC, Mr. Trump said of Reagan, “I have great respect for him. I helped him. I knew him. He liked me and I liked him.”
In the original trademark filing, Mr. Trump’s lawyers failed to apply for the exclusive right to use “Make America Great Again” on clothing. Thus, while the Trump camp was granted the trademark by 2015, anyone could manufacture and sell t-shirts and hats sporting the phrase (and any Google search could bring you to a dozen sale pages for these “knock-offs”). Catching wind of this oversight, on August 5, 2015, California residents Meri Bares and Bobby Estell filed application number 86716074 to trademark the use of “Make America Great Again” on a wide range of products such as hats, t-shirts, backpacks, socks, sweatshirts, swimsuits, wallets, change purses, and dog apparel. In doing so, Bares and Estell effectively made it illegal for Trump to continue to sell his Make America Great Again apparel.
A couple days after filing, Estell, a syndicated country music host, tweeted at The Donald that they would be willing to give him his trademark in exchange for a $100,000 donation to St. Jude’s Children’s Research Hospital. On October 27, Trump sent a check for an undisclosed amount to the hospital. “Transfer of Trademark” was reportedly the noted description on the check. On November 11, 2015, the transfer was made official by the U.S. Patent and Trademark Office.
While he now has the full range of exclusive rights to sell $30 Make America Great Again t-shirts, Trump is not quite finished with his crusade. He has publicly criticized at least two of his rivals in the GOP race for their use of “his” phrase.
After Scott Walker shouted the slogan at the end of his speech at the South Carolina Freedom Summit, Trump reportedly told The Daily Mail that he was “disappointed that he would take my phrase.”
In a Fox News interview, Trump accused Ted Cruz of stealing his line during his presidential campaign announcement in March 2014. “I’ve been using it all over the place. And I noticed that they’re all copying it now. Everybody’s using it. I was the first by a long shot. And that’s interesting.”
Trump further stated, “I’ve actually trademarked it. I mean, I get tremendous raves for that line. You would think – I could come up with different lines. You would think they would come up with their own.”
Does it matter that Reagan could say the same thing about Trump? Legally, it does not—Trump owns the trademark, and for that, the law is on his side. We’ll see soon enough if the country is too.
Christine McLellan is a J.D. candidate, 2017, at NYU School of Law.