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Trump’s ‘Truth Social’ Trademark Loss More Detour Than Roadblock

Aug. 30, 2022, 9:29 AM

The preliminary rejection of a bid to register a trademark for Donald Trump’s “Truth Social” platform is a setback for the former president’s efforts to build his own social media brand—but it’s not clear whether the loss will be lasting.

Trump Media Group Corp.'s application to register a trademark for the name was initially denied by the US Patent and Trademark Office, which said that the mark was likely to be confused with two other trademarks, Vero-True Social, a social media platform and mobile app company, and Truth Network, a Christian talk radio platform.

The initial rejection highlights the issue of how similar a trademark needs to be to an existing mark to create a likelihood of confusion. The former president’s organization has six months to respond to the office’s action and make its case for registration before the trademark application is considered abandoned.

‘Not Ridiculous’

Some attorneys predicted that the organization may ultimately prevail.

“Refusals are more common than people think,” said intellectual property attorney Andrea Evans of the agency’s recent action.

There are several arguments that Trump Media Group could make to change the agency’s thinking, she said.

When addressing likelihood-of-confusion claims, the PTO usually looks at sight, sound, and meanings, according to Alexandra Roberts, an intellectual property law professor at Northeastern University School of Law.

“When you have deep pockets and you want the registration badly, we often see really extensive arguments, explaining with dictionary definitions and linguistics and appeals to different strategies, on why they’re actually not so similar, and why people are not likely to be confused by them,” said Roberts. “And I think in this particular case, that’s not ridiculous.”

In addition to the initially refused trademark application, Trump also applied to register the name “Truth Social” for a variety of drinking glasses, flags, and clothing earlier this year, through his company T Media Tech LLC. That application was accepted by the PTO and is scheduled to publish for opposition on August 30.

Roberts said that may give Trump and his team a leg up when it comes to defending their recently denied application, as owning an existing registered trademark for different goods and services with the same name strengthens their chances of registering “Truth Social” in other contexts.

Another possible route would be for the Trump Media Group to convince the other two parties cited in the initial rejection to consent to co-exist, Evans suggested. Roberts said that while such agreements are common, they are not always successful in convincing the PTO to register the mark in question.

“Sometimes the USPTO is persuaded by that, but sometimes they say, ‘That’s nice for you, but our concern is the public and members of the public will still be confused,’” Roberts said.

‘Uphill Battle’

Other attorneys are more skeptical of Trump’s chances.

The application has “anywhere from a one in three to one in two chance of success,” trademark attorney Josh Gerben said.

“It’s not about whether or not these businesses ultimately have different names. It’s about whether the average consumer would be able to tell them apart, given the similarity in the name,” Gerben said. “If you put all these truth marks in a bowl and pick them out, they all sound really similar and they all sound like they could be offering very similar things.”

Gerben said that the platform’s association with Trump creates a bias for many that assume there is no likelihood of confusion because they are aware of Truth Social’s connection to the former president, “but that’s not a legal analysis.”

Despite Trump’s prominence, he remains at a disadvantage with regards to the trademark registration application because his name is not referenced in the mark, unlike other famous and political figures, such as Michelle Obama, who have registered trademarks for their own goods and services.

“If you’re filing for your own name, and you’re a politician, then you’re not going to have an issue like this,” said Gerben.

William Stroever, co-chair of the intellectual property department at Cole Schotz P.C., believes that registering the trademark is an “uphill battle,” that will likely involve opposition in nearly every scenario.

If the PTO approves the mark, it will be published for opposition, during which time Vero-True Social and Truth Network are likely to oppose the application, according to Stroever.

However, if the PTO issues a final refusal regarding the mark, Trump Media Group can appeal the decision to the Trademark Trial and Appeal Board. Regardless of the outcome, Trump’s social media platform can continue to function as is, unless it’s sued by another company over the name.

Despite the hurdles, the platform still may be able to prevail.

“I don’t think that they’re sitting with a slam dunk case by any stretch, but I also don’t think that they’re fighting a case that is not winnable,” said Gerben.

“I think we’re at the beginning stages of what is likely a process to appeal this decision, and they’ll have multiple bites at that apple if they want it.”

To contact the reporter on this story: Riddhi Setty in Washington at rsetty@bloombergindustry.com

To contact the editors responsible for this story: Keith Perine at kperine@bloomberglaw.com; Adam M. Taylor at ataylor@bloombergindustry.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com