KEEP AMERICA GREAT! Fails to Function as a Trademark for Ornamental Novelty Pins, Says TTAB

Not surprisingly, the Board upheld a refusal to register the proposed mark KEEP AMERICA GREAT! for ornamental novelty pins, finding that the phrase is "a political and cultural message one that is too commonly used, often ornamentally, in connection with novelty pins and other products for it to be perceived as a trademark." In re America in Harms Way, Serial No. 87976064 (November 30, 2023) [not precedential] (Opinion by Judge Michael B. Adlin).

Examining Attorney Michael Furda based the refusal primarily on third-party use, including use by the media, of KEEP AMERICA GREAT!. He contended that the phrase "has been widely used by many different sources as a political informational message to convey support for ideas espoused by Donald Trump."

Applicant focused mainly on former President Trump ’s use of, and attempts to protect, the proposed mark, as well as the related Trump campaign slogan MAKE AMERICA GREAT AGAIN. "However, Applicant does not directly grapple with the evidence that (1) 'many different sources' use the proposed mark KEEP AMERICA GREAT!, or (2) the phrase is not used only by former President Trump and his campaigns, but is also, more broadly, 'associated with' him."

Moreover, Mr. Trump is not the only user of the proposed mark. The Biden camp acquired the domain name "keepamericagreat.com" for a web site that "features what it says are promises made by Mr. Trump that were broken." And many other candidates used the slogan in the 2018 mid-term elections,

Numerous vendors also use the proposed mark on goods, often ornamentally, with no evidence of any affiliation with Mr. Trump and no indication that KEEP AMERICA GREAT is a proprietary term. At the same time, many third parties use the phrase to express specific support for Trump campaigns,

The diverse collection of buttons and pins (and other products), offered in inconsistent forms and styles, by apparently unrelated sellers/competitors, indicates that the proposed mark is widely used by many, without direction from former President Trump or his campaigns. Some third-party users appear to have primarily commercial motives, while others transmit political or cultural messages in connection with their offers for sale.

The Board observed that the question at hand is whether consumers would perceive the phrase as identifying the source or origin of applicant’s novelty pins. To make this determination, the Board looked to the specimens of use to see how the designation is used in the marketplace.

[T]he back of Applicant’s pins indicate that they are a “PRODUCT OF KEEP AMERICA GREAT!,” and the involved application indicates that “KEEP AMERICA GREAT! is Applicant’s DBA. Thus, Applicant’s ornamental novelty pins purport to identify Applicant as their source. However, “[m]ere intent that a phrase function as a trademark is not enough in and of itself to make it a trademark.” 

The Board was unimpressed by applicant's evidence. 

Put simply, when consumers are exposed to so many different sources of  'KEEP AMERICA GREAT!' hats, stickers, pins, buttons, songs, flags, clothes, signs and other products, the phrase cannot identify any particular source of these goods. The phrase is instead a political and cultural message, used by people who share political and cultural views to affiliate themselves with, and promote, former President Trump and his beliefs.

Applicant argued that it was the first user of KEEP AMERICA GREAT! in commerce, but the Board pointed out that, even if true, that would be irrelevant. "The problem is that the phrase does not function as a mark, and therefore it cannot be protected as such, no matter when it was first used, or by whom."

Finally, the Board proclaimed that "Applicant should not be able to deny competitors (who according to the record also use the phrase) the right to use it freely.

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TTABlogger comment: Another one bites the dust. Surely, this is a WYHA?

Text Copyright John L. Welch 2023.