Whatever your politics, the forthcoming ascension of Donald Trump to the Oval Office is a momentous event in the world of brand licensing. Few people are as aggressive about slapping their name on products as the Donald—and few are as zealous in protecting their intellectual property as the Trump Organization. Clearly, this is a subject I had to address as I run a brand-licensing agency, and for the past month, my inbox has been piling up with questions about leveraging the Trump brand.
Let’s get the obvious out of the way first: Whether he’s the president or a painter, Trump will always threaten legal action when he feels someone has crossed the line. (Whether his bluster ever turns into action is a separate question.) This litigiousness is sure to make investors and entrepreneurs think twice before trying to profit from Trump’s name.
Yet there will be those who want to test the trademark protection of the leader of the free world—those who seek to set precedent in these uncharted waters. And make no mistake: We haven’t been here before. Sure, as president, Ronald Reagan collected royalties on movies he’d been in, but he didn’t have a business empire built around the Reagan brand. Indeed, License Global ranks the Trump Organization, with $225 million in annual revenue, 106th among the world’s top licensors.
So what’s a licensee to do? Say, for example, that I want to sell Trumpian steaks that compete with the original Trump steaks. This kind of licensure is unlikely to pass the smell test—courts would, no doubt, see it as a direct infringement.
On the other hand, what happens if I want to enter a market that Trump hasn’t touched? What if I want to sell Trump tchotchkes?
The short answer: No, you won’t be able to legally sell Trump-branded tchotchkes. Simply put, the US Patent and Trademark Office is highly unlikely to grant a trademark in the name or image of a president—or even president-elect. As any patent attorney will tell you, unless you have the express written consent of the individual, your application is DOA. And you can bet that Team Trump, whether in the White House or Trump Tower, will pursue any Trump knockoffs with a vengeance.
And yet, the keen observer will note that Obama masks and stickers are routinely sold without incident. Is there a double standard at play in the world of brand licensing?
Again, no. Halloween costumes and the like are usually viewed as parody—or at least more comical than commercial. And aside from Obama’s big ears, these trinkets typically aren’t terribly offensive.
By contrast, third-party Trump merchandise—everything from mugs to magnets, from pen holders to pens, from toilets to, yes, toilet-paper rollers that talk—are more likely to strike that third rail of licensing: to piggyback on his name, likeness, or brand. In other words, you’ll be hard pressed to make a parody argument if your business is primarily pecuniary.
Sure, you can peddle a few gadgets on a street corner. And, no doubt, opportunists (foreign and domestic) will seize the moment. But as someone who has been in this business for almost 20 years, take it from me: From here on out, even the most entrepreneurial of entrepreneurs won’t get a Trump trademark in any class of good or service unless Donald Trump expressly consents. And that’s unlikely.
To the contrary, any product the president considers offensive or derogatory—admittedly a vast category—will surely be pursued like-lion. (My money says that somewhere in the Old Executive Office Building, an entire team will be charged with unearthing this stuff and shutting it down.) Thus, any decent brand-licensing program faces formidable obstacles.
The bottom line: Whether you want to make a buck or score a political point, stay away from gadgets and garments, and don’t hawk a bobble-head. Instead, pick up a pen and write an op-ed.