Have you heard of Donald Drumpf?

Donald Trump or Donald DrumpfJohn Oliver recently made Donald Trump the main story for an episode of his show, “Last Week Tonight with John Oliver.” In the show, which you can view here, Oliver argued that opponents of Donald Trump need to separate the man, Donald Trump, from the “brand,” “Trump.”

One way to do that, he suggested, is to describe Trump using his original family name, Drumpf, instead of his “brand name,” Trump.

John Oliver knew that his idea could take off, so before the show aired he filed an application for a trademark on “Drumpf.”

The application specifies “Drumpf Industries, LLC” as the applicant. Bloomberg reports that this is a company controlled by John Oliver. Oliver has also set up a website, http://www.donaldjdrumpf.com , encouraging the public to “Make Donald Drumpf Again.”

Trademark law, however, is very restrictive when it comes to getting a trademark on a name. Will John Oliver succeed with his application to trademark the name “Drumpf”?

Stay tuned...

Names and Trademark Law

Trademark law is largely defined by the Lanham Act, signed into law in 1946. As a general rule a surname is NOT eligible for trademark registration unless two requirements are met:

  1. The name must have acquired a secondary meaning. It must have this secondary meaning BEFORE a trademark is granted. For example, Richard and Maurice McDonald started a restaurant selling hamburgers in 1940. If they had applied for a trademark immediately, they would not have gotten it because the name “McDonald’s” wasn’t associated with a secondary meaning. By 1961, when the company (now owned by Ray Kroc) filed for a trademark on McDonald’s, the name was well-established in secondary usage as the name of a restaurant chain.
  2. If the mark is primarily the surname of a living person, that person must give his or her permission to register the mark. Hence an attempt to register the mark “Obama Pajama” was denied as there was no permission from President Obama.

People sometimes think they always have a right to use their own names as trademarks. Not true. McDonald’s Corporation has a lock on the use of McDonald’s in food service. Even if your name were John McDonald, you wouldn’t be able to call your coffee shop “McDonald’s Coffee.”

On the other hand, trademarks are limited in scope to particular industries. Hence we have Apple records and Apple computers with no connection to each other — though a lawsuit resulted when Apple computers got into the music business.

John Oliver’s Quandary

It’s possible that John Oliver has blocked his own attempt to trademark “Drumpf.”

On the one hand, with the website up, and his show having received millions of hits, there is no denying that “Drumpf” is now in secondary usage.

On the other hand, since he has very closely associated the name with Donald Trump, it could be he would have to have Trump’s permission to use the Drumpf trademark — permission that Trump would no doubt deny.

It will be interesting to see what the US Patent and Trademark Office does with this case, if there is litigation.

(Photo Credit: "Donald Trump" by Gage Skidmore is licensed under CC BY-SA 2.0.)

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