Election day is right around the corner and a group of Penn State students seek to endorse Trump by forming a club with the label “We are for Trump.” Penn. State University has requested that they use a different name, due to trademark issues with the label. The presidential candidate has a number of trademark applications on his own name and in light of this, the University does not want to have an infringement case on its hands. The student group, in response, has changed its moniker.
Trademark law is prevalent everywhere. Public figures, and more so, celebrities have a number of trademarks on their names. It is easily identifiable if a trademark exists or not. USPTO has a registry of all registered trademarks to date and this is all public information. There are no excuses around infringement. Yet at the same time, there are times when someone can use a trademark without permission. For one, there is a fair use doctrine in trademark law just as there is with copyrights. Under this commonly invoked doctrine, if the defendant uses the mark for educational, nonprofit, or non-commercial reasons, then they might have a strong defense against infringement.
The purpose of trademarks is to prevent consumer confusion from occurring—this confusion would hurt the marketability of the product that the mark is associated with. Being able to trace the product to its source is the key reason why individuals and corporations seek trademarks. For example, if someone sells a low-quality shoe and they stick the famous Nike “Swoosh” logo onto their products, and consumers come to associate these inferior shoes as part of the Nike product line, it could potentially hurt business for Nike. Trademark law will permit Nike to file a claim against this counterfeiter. The less it impacts the commercial value of the mark, the more likely a fair use defense can be made.
First Amendment and Political Discourse
Aside from the fair use doctrine, First Amendment implications are in play as well. Election season is in full swing and these student groups just want to show their support for one of the candidates. There is no commercial value to their campaign. All they want to do is spread the word. Placing a lid on this could, as many constitutional law experts like to call it, have a “chilling effect.” First Amendment grants basic fundamental rights such as freedom of speech and assembly. Both speech and assembly are in full force here. Political discourse should not be inhibited. Trademark law should not inhibit speech. Many different sources have made use of the word “Trump” as part of their political campaign and this is no exception. The Founding Fathers carved out the Bill of Rights for one reason—it was to ensure that every citizen of the U.S. would be given certain inherent rights and speech is one of them.
The University has promptly responded because it does not want a lawsuit on its hands. The University seeks to avoid a lawsuit from the Trump Foundation but by doing so, it is impeding on the students’ rights to speech and assembly. Similar cases have worked their way up to the U.S. Supreme Court, and although a number of them act as precedent, issues like this are still very much up in the air. Trademark is an interesting area of the law because it walks a fine line. It grants rights to commercial enterprises, but also impacts long held constitutional values all the same. It is walking on thin ice. There is ground to make up when it comes to trademark law, especially with regards to political discourse.
Authored by Sam Behbehani, LegalMatch Legal Writer