Future First Lady Melania Trump enlisted trademark counsel late last year to ward off businesses in her native Slovenia that have been using her name and likeness without her authorization. Honey "from Melania's home garden," “best-selling” pancakes named after the former model, and billboards constructed with her image on them are just a few of the many items that Slovenian entrepreneurs have been utilizing and/or offering for sale since Mrs. Trump's husband, Donald Trump, began campaigning for his now-role as President of the United States.
"We just want to draw public attention to the fact that the words ‘Trump,’ ‘Melania’ and ‘Melania Trump’ are protected trademarks and that use of Mrs. Trump's image, name and characteristic features for commercial purposes may amount to violations of her right of publicity,” Natasa Pirc Musar, counsel at Slovenian law firm, Pirc Musar & Partnerji, said in December. She further noted: “We issued a press release and sent it to all Slovenian media. Now we count on people’s prudence to stop the practice.”
While Musar said that Mrs. Trump does not want to pursue legal action, her legal team is “closely monitoring” the cottage industry hawking Melania Trump-associated products from quintessential Slovenian honey to pastries has sprung up.
Musar noted that goods and services that make use of Trump’s photo or last name are top priority right now. She said that she does not mind that a giant Christmas tree in the Slovenian capital of Ljubljana is called Melania. On the other hand, a billboard advertisement erected in Sevnica featuring Mrs. Trump’s image, is representative of an unauthorized use that the firm will target.
“A huge billboard in Sevnica with Melania’s picture, erected by a private web company for commercial purposes, is problematic," as are "honey jars from 'Melania’s home garden' with Melania’s image and Slovenian and American flags," she said. "In Slovenia and most of Europe this represents a violation of personality rights.”
What about the United States?
Given Mrs. Trump's new position as First Lady, the pattern of activity in Slovenia and at least one curious trademark filing in the U.S., the U.S. Patent and Trademark Office ("USPTO") will likely start to receive applications for the registration of trademarks aiming to profit from Mrs. Trump's name - something it has seen in connection with past administrations.
In the U.S., Trump already holds several trademark registrations - one for "MELANIA" in the class that covers watches and jewelry; another for "MELANIA" for various cosmetic products; and a third for "MELANIA TRUMP" for cosmetic goods. There is also one pending trademark application with USPTO for "MELANIA" for additional cosmetics.
Also pending before the USPTO, an application to federally register the trademark, "Melania Diet." Filed by Melania Diet LLC, a Scottsdale, Arizona-based entity, on July 20, 2016 - the day after Donald Trump was named the official Republican presidential nominee, the mark appears to be a good indication of what will happen when companies (or individuals) file applications in the U.S. for marks aimed at piggybacking on the name and likeness of the new First Lady.
As of mid-November, the USPTO refused to register the mark, citing the Trademark Act Section 2(c), which holds: “No trademark ... shall be refused registration on the principal register on account of its nature unless it ... Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent."
According to the USPTO's Office Action (a letter sent to notify an applicant about issues with his application, including the reason why registration is being refused or what requirements must be satisfied):
Registration is refused because the applied-for mark consists of or comprises a name, portrait, or signature identifying a particular living individual whose written consent to register the mark is not of record ... Melania Trump is married to American businessman and President-elect of the United States, Donald Trump ... The public would recognize and understand the proposed mark as identifying Melania Trump.
The USPTO examiner further stated: "Section 2(c) applies not only to the full name of an individual, but also to any first name, surname, shortened name, pseudonym, stage name, title, or nickname that identifies a particular living individual." And stated previous examples, in which registration was found to be barred, including PRINCESS KATE ... because the mark “points uniquely and unmistakably to Kate Middleton,” the Duchess of Cambridge, "whose identity is renowned;" and OBAMA PAJAMA, OBAMA BAHAMA PAJAMAS, and BARACK’S JOCKS DRESS TO THE LEFT because "the marks create a direct association with President Barack Obama."
In the case at hand, the USPTO held that "MELANIA points uniquely and unmistakably to Melania Trump," and as a result, Melania Diet LLC is required to "submit written consent from the referenced party. This written consent must include a statement of Melania Trump’s consent to applicant’s registration of the identifying matter as a trademark, and not just the party’s consent to permit applicant to use the mark."
Without consent from Trump, Melania Diet LLC and any other companies planning to apply for trademark registrations containing her name are almost certainly out of luck.