One question that trademark lawyers hear all the time is “they can’t trademark that, can they?” Take the recent news about the “Trumpertantrum.” Did Donald coin the term? Maybe not. But that does not mean he can’t claim it as his own.
Trademarks are interesting in that way. You can own a trademark because you are the first to use it in connection with a particular product or service. Sometimes clients will see a competitor take a common English language word and try to say no one else can use it on their products. Let’s say you come up with a mouse that looks like a rock. And you call it “The Rock.” There’s a tendency to think, “it looks like a rock, and a rock is a common object. No one can really claim the exclusive right to stop me from using the word ‘Rock’ on a mouse or any other electronic input device.”
Answer: Sure they can. It happens every day. Just think about how a few short decades ago, apples were most famous for their connection with the damnation of mankind. Now the word “Apple” means phones, tablets, laptops, and music. It is easy to understand that no one else can use that word. Because a trademark is not about creating a new name. It is about creating an association between a work (real or made-up) and a product.
It also is not important who created the word. (Who created the word “apple?”) Trademarks protect association. So while the trademark owner is free to create her own word to sell a product, what allows legal protection is not if the word is made up or a dictionary term (that can come into play, but it’s what we trademark lawyers love to call a “factor” and not the whole question). Someone can invent a word, but unless they are using it on a product or service, there is no trademark right.
What does that mean for Donald Trump? It means that even if Ted Cruz made up the word “Trumpertantrum,” Trump can still own the trademark for certain goods or services, as long as he is selling something with that word. Trademark rights cannot be owned in words. They can only be owned for words as used to identify a product or service, or a trait of that product or service.
Donald Trump speaks during a campaign event in Portsmouth, New Hampshire, on Thursday, Feb. 4, 2016. (Photographer: Victor J. Blue/Bloomberg)
There are exceptions, of course. What would the law be without exceptions? Let’s say you want to jump on the “Trumpertantrum” term – which you did not create – to sell boxing gloves. According to the concept of first use – the first to use a name on a product has superior trademark rights – you should be able to legally sell “Trumpertantrum” boxing gloves, even though you did not coin the term. Ted Cruz, who seems to have invented the word, would have little legal basis to stop you, even as the “inventor” of the word. So far, so good. But what if you were Donald Trump and you said: “People seeing my name on these gloves will naturally believe that I make or endorse this product. They will be confused.”
Even if the dispute is in Iowa, Trump wins. Because your right to take a word that you did not invent and apply it as a trademark is only allowed until that use would be likely to cause consumer confusion. Here, because the consumer might reasonably think that Trump owns or endorses any “Trumpertantrum” products or services, he can stop their use.
Think about this like “Obamacare.” Certainly the president didn’t make it up. For a time, it was used derisively by critics of the plan. But, eventually, the president came out and said he actually liked the name, and it has stuck.
What if Ted Cruz says that consumers will believe any Donald Trump product sold under “Trumpertantrum” must be endorsed by Cruz? He’s free to make that argument; if he can prove it, he can win. But Trump has a bit of a head start on trademark use.
In most trademark disputes, you can’t go too wrong by asking yourself, “What do I think consumers would believe?”
This post originally appeared on Forbes.