In the midst of the heated presidential campaign, a public health physician has filed for a trademark on the phrase “Trump TV.” This is a recurring and oft used phrase by the presidential candidate himself. This makes things difficult for Trump. He is known for holding various trademarks and this would be no exception. If he were to file a trademark on this particular expression, the USPTO might deny him. USPTO, the governing body of trademark registrations, regularly turns down countless trademark applications.
Grabowsky, a health doctor, decided to file a mark on the phrase. He did it on a whim. He is the first to apply for the mark. This would technically mean that if the USPTO approves registration, then he could have rightful ownership on the mark before Trump does. Of course, USPTO takes a number of factors into consideration. For one, Grabowsky has no real commercial purpose for filing the mark. This might tip the scale in favor of Trump.
Lanham Act and common law govern trademark law. Trademark examiners look over the application, and then proceed to determine if any preexisting marks of the same kind exist. If so, the application is rejected. Once an application is approved, the trademark is registered and becomes public information. However, there are exceptions to registration. Under Lanham Act, even an unregistered trademark can receive protection. Moreover, some states follow a first use rule policy. This means that an unregistered mark may receive priority over a registered mark if it can be shown that the registered mark was used commercially first. Trademark law is all about commercial use of the mark. If someone registers the mark but “abandons” it, then it will become invalid.
Trump has a solid claim due to the simple fact that he has made use of the phrase in promoting his campaign. He could very likely have used it for commercial purposes too. If USPTO determines that Trump has commercially made use of the phrase, then he will have ownership over the mark. Grabowsky has admitted that he has done hardly anything with the mark. This makes his case for the mark harder. He has not made commercial use of the mark. There is much to trademark law but the core principle is the preservation of the product’s business value that is reflected in the mark. A public health doctor like Grabowsky has no real use for the mark and has filed an application on a mere whim. Trump, on the other hand, has made full use of the mark in the public domain and there most certainly can be commercial value found in his usage of the mark.
Trademark is a unique animal. Trademark application is a multi-level process that requires careful scrutiny by trademark examiners. At times, coexistence of the same mark is a possibility. However, as mentioned above, registration of the mark is not as essential as making commercial use of the mark. Priority will be given to whoever can show that they had made full commercial use of the mark first. Some states might have a first to file system where they give priority to the party that files for an application first. If this were the standard applied to this case, then Trump would receive the short end of the stick. But this approach is hardly used and Trump has a stronger showing for use of the mark.
Authored by Sam Behbehani, LegalMatch Legal Writer