Comedian John Oliver’s antics rarely stop with his HBO show, “Last Week Tonight.” After discovering Donald Trump’s ancestral name, Drumpf, John Oliver dedicated an entire segment to disassociating Donald Trump from his TRUMP brand and its perceived wealth and success. John Oliver also formed an LLC, Drumpf Industries, filed a trademark application for DRUMPF, and began selling paraphernalia emblazed with “Make Donald Drumpf Again.”
As noted in previous blog posts, trademark applications that reference living people require consent. On May 05, 2016, the DRUMPF trademark application received an Office Action based on a 2(c) refusal for identifying a living person. As evidence of DRUMPF’s relationship to Donald Trump, the USPTO cited several news articles from The Boston Globe, Time, and The New York Times reporting on the John Oliver segment, which predictably associated the DRUMPF mark with Donald Trump. The USPTO concluded, “DRUMPF is a reference to Mr. Trump. Therefore, the general public would readily associate the applied-for mark, DRUMPF, with Donald Trump.” Unless Drumpf Industries obtains Donald Trump’s consent within 6 months, the application will be denied.
But not all hope is lost for John Oliver and the DRUMPF mark. Trademark rights can apply at common law, without federal registration. Common law trademark rights, however, are only conferred within the certain territory that the mark is used in. Currently, the DRUMPF mark is being used rather broadly—the website donaldjdrumpf.com prominently features the “Make Donald Drumpf Again” slogan and customers can buy “Make Donald Drumpf Again” hats on hbo.com. The DRUMPF-branded hats are reportedly so popular, that HBO has been able to drop the price from $17.50 to $15.00, and still only charge “at-cost” value. Even without the benefit of federal registration, DRUMPF has managed to become a well-known source identifier with a thriving customer base. And most importantly for John Oliver, Donald Trump’s relationship to DRUMPF has been expressly affirmed by the USPTO.