— Jessica Gutierrez Alm, Attorney
This presidential election cycle has been nothing if not entertaining. Mr. Trump has been a particular favorite among late night T.V. hosts.
In one particular 20-minute monologue, Last Week Tonight host John Oliver berated the Donald, and in doing so, brought to light a historical quirk of the Trump name. It would seem that the Trump family name was at some point changed from Drumpf to Trump. Exactly when in the family history the name change occurred seems unclear, and Trump himself has neither confirmed nor denied the namesake. Oliver encouraged viewers to begin referring to Donald Trump as Donald Drumpf, in an effort to separate the man from the brand. The video quickly went viral after being posted last weekend, and now boasts 57 million views on Facebook. The hashtag #MakeDonaldDrumpfAgain has been trending for days.
As he states in the video, Oliver has even filed a federal intent-to-use trademark application for the standard character mark “DRUMPF.” The application, actually filed by Drumpf Industries, LLC, is for use of the mark in the “provision of a website featuring multimedia.”
The Lanham act has two provisions related to registering a person’s name. Section 2(c) bars registration of a mark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” This section prevents individuals from profiting off of others’ names. Section 2(c) has also allowed Donald Trump, himself, to trademark TRUMP on several occasions, by filing a written consent. This provision has also prevented others from registering marks such as OBAMA without the President’s consent.
Section 2(e)(4) provides that a mark may not be registered on the principal register if it “is primarily merely a surname.” Marks that are primarily merely surnames, or last names, are treated as descriptive marks. They may be registered on the supplemental register. Or, if the name has acquired distinctiveness under Section 2(f), it may be registered on the principal register.
It’s possible that either, or both, of these provisions could be cited against John Oliver’s trademark application.
Section 2(c) could arguably be cited against the application, because although Drumpf is not Trump’s actual legal name, John Oliver makes clear that the DRUMPF name is intended to “identify a particular living individual” without his consent. The popularity of Oliver’s video, website, and hashtag may even weigh in favor of an argument that the Drumpf name is intended to identify a particular individual.
Section 2(e)(4) may also be cited against the application on the basis that Drumpf is “primarily merely a surname” without acquired distinctiveness. To establish whether a name is primarily merely a surname, the PTO will look at five factors:
(1) Whether the surname is rare;
It does appear rare, at least in the U.S. A quick search on 411.com and familypedia.wikia.com, sites used by the PTO in the past to show the prevalence of a surname, did not reveal any matches for the surname Drumpf. This suggests Drumpf is not primarily merely a surname.
(2) Whether the proposed mark is the surname of the Applicant or anyone connected with the Applicant;
Unless someone connected with Last Week Tonight has the name Drumpf, this factor likely suggests that Drumpf is not primarily merely a surname.
(3) Whether the proposed mark has any recognized meaning other than a surname;
This can occur where, for example, the term has a meaning in a foreign language, or is associated with a different brand. It’s unclear where this factor would fall.
(4) Whether the term has the “look and feel” of a surname; and
A lot of elements can influence the “look and feel” factor. Drumpf appears to have been of German origin, according to biographer Gwenda Blair. Whether Drumpf is more similar to other German surnames may affect this analysis.
(5) Whether the stylization of the lettering in the proposed mark is distinctive enough to create a separate commercial impression.
The fifth factor does not apply in this case, as the application is for a standard character mark.
Moreover, if a Section 2(e)(4) rejection is raised, could Oliver argue that DRUMPF has acquired distinctiveness in connection with the proposed services based on the immense popularity of Oliver’s related video, website, and hashtag?
In any event, as with the rest of the election, it will be interesting to watch where this application goes.