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Politicians and their trade marks: a brief look at Clive Palmer’s and Donald Trump’s problematic Australian trade mark registrations

This article looks at two Australian trade mark registrations, one for “CLIVE PALMER” (owned by Mr Palmer’s company Minerology Pty Ltd) and one for “TRUMP” owned by Donald J Trump).

Mining magnate, occasional Federal politician, nemesis to the Western Australian government, and raconteur Clive Palmer has, though his company Minerology, successfully registered an Australian trade mark for his name “CLIVE PALMER”. Here is a partial extract from the Australian trade marks register:

Celebrities, including politicians, often apply to register their names as trade marks, although to register this brand in all 45 classes of goods and services is quite something. The obvious question is whether or not Minerology intends to use the brand “CLIVE PALMER” for goods as diverse as “non-medicated cosmetics”, “conductor’s batons”, “meat extracts”, “incubators for eggs”, and “sexual activity apparatus”. It seems inconceivable.  Here is a full extract of he goods and services covered by the registration:

Mr Palmer seems to have taken all of the class headings and filed an application based upon them.

The Trade Marks Act requires an actual intention to use the mark which is the subject of an application, in respect of the goods and services described in the application. Section 92(4)(a) of the legislation permits an application to be made to remove a mark, in whole or partially, on the basis that the applicant had no intention in good faith to use the mark. Perhaps a defensive trade mark – much more difficult to get, but requiring no evidence of intention to use – might have been a better option.

Five years before the 2016 election, Donald Trump filed an Australian trade mark application for “TRUMP”, covering, amongst other things, advertising, real estate services, the promotion of casinos, and various incentive rewards services.  Here is an extract:

Google and Wikipedia searches each suggest that the registration does not appear to be in use in Australia, under license or otherwise. Given the Trump Organisation’s complex corporate structures and global interests, however, of course it is entirely possible that a licensed entity is providing those services under the TRUMP brand in Australia, but that is not apparent. Section 92 (4)(b) of the legislation states that a trade mark owner who does not use a registered trade mark in Australia for a period of three years and one month can have the registration removed on the basis of non-use (provided, in this case having regard to the filing date of the mark, at least 5 years must have passed since the filing date of the registered trade mark – which has occurred here).

Mr Trump ceased being US President on 20 January 2021.  Mr Trump might be able to say that his time in office as President of the United States was a factor triggering the exercise of the Trade Mark Registrar’s discretion to allow the registration to stay on the register  Section 101 of the Trade Marks Act notes, “If satisfied that it is reasonable to do so, the Registrar…  may decide that the trade mark should not be removed from the Register even if the grounds on which the application was made have been established.”  As far as we know, holding political office has never been a trigger for that “reasonableness” overlay.

David Stewart

Principal / Head of Intellectual Property Law

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.

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