September 24, 2015
Is Trump® a Muzzle on Free Speech?
Sue O'Connell READ TIME: 3 MIN.
Donald Trump joins the list of candidates and presidents who have had their name or likeness used on products. Every Halloween you'll find trick or treaters donning masks of Obama, Clinton (both Mister President and Madam Secretary), Bush (H., W., and Jeb!), and that oldie-but-goodie, Nixon.
If elected, Mr. Trump won't be the first president to consider what, if any, legal action should be taken to protect the presidential image. President Barack Obama's historic run and victory-and world-wide appeal-presented a special challenge to the White House legal team. In 2009 Bloomberg News reporter By Julianna Goldman quoted White House spokesperson Jen Psaki saying, "Our lawyers are working on developing a policy that will protect the presidential image while being careful not to squelch the overwhelming enthusiasm that the public has for the president,"
Mr. Trump, however, arrives on the scene with a trademark already in hand.
Trump is not just the last name of a candidate for the office of US president, it is also the registered trademark of the "well-known businessman, real estate developer, star of the television show 'The Apprentice' ", according to a cease and desist letter sent to the owners of President Entertainment, a Massachusetts company that runs www.StopTrump.us. Alan Garten, Executive Vice President and General Counsel for The Trump Organization, sent the letter.
Bay Windows has obtained a copy of the letter, which you can see here.
StopTrump.us claims, via their web site, their "main mission is to counteract the divisive comments of Mr. Donald Trump's presidential bid for 2016. We believe that his campaign only instigates divisiveness, ignorance and xenophobia against immigrants nationwide.Stop Trump was created as a way to creatively respond to the attacks from Donald Trump to immigrants from Mexico and Latin America."
Mr. Trump is not the first candidate to have a name that is also a brand. Steve Forbes comes to mind. Twice a Republican presidential candidate, he is the editor of Forbes magazine. "Forbes," however, pales in comparison to "Trump" as a desirable marketing hook.
Will Mr. Trump's legal team crackdown on Trump latex masks? Life-size cut-out stand-ups?
I asked Mr. Garten that very question. He responded that any company brought to his attention using Mr. Trump's name for profit will be contacted. "Making a profit off Mr. Trump's name," without Trump's permission, "is a violation of trademark law. "This
More seriously, if elected, will the White House legal team be busy defending the Trump� name from profiteers and dissenters? Will the First Amendment right of Americans to disagree with the president be hindered by Trump�?
Garten states that The Trump Organization, and he as a lawyer, vigorously believe in the First Amendment. "This is not attempt to stop free speech, It's about commercial activity." He said he, and Trump, support the right to dissent and criticize.
www.stoptrump.us is a for-profit company (which promises to donate "a percentage of our revenues to organizations that support democracy, immigrant rights and Latino education"). But what if it were a not-for-profit organization which sold merchandise with the Trump name? Is the threat-and cost-of dealing with the legal division of The Trump Organization enough to quell anti-Trump action?
Presented with the hypothetical, Garten says, like the Obama White House lawyers before him, that they would evaluate issues on a "case by case basis."
Copyright and trademark law does require the holder of the right to vigorously defend that right, as anyone who has been on the wrong side of a Disney or Elvis Pressley image dispute will tell you.
One of the founding partners of www.stoptrump.us thinks such efforts will stifle free speech rights. When contacted by email, he's wrote that he is very concerned "First Amendment and political discourse are at stake." He, a Mexican immigrant launched the site with a partner who is a Columbian immigrant, in response to comments made by Trump about immigration in his announcement speech in June. "When Mexico sends its people, they're not sending their best. They're not sending you," Trump said. "They're sending people that have lots of problems, and they're bringing those problems with us. They're bringing drugs. They're bringing crime. They're rapists. And some, I assume, are good people."
Both www.stoptrump.us founders are legal US residents. "We are not rapists," the founder, who wishes to remain anonymous but is known to Bay Windows, wrote. "We are entrepreneurs."