I’m so ferociously angry, again, at Trump and the feckless and corrupt DOJ and SCOTUS that enable him, I could spit nails. That’s why I’m writing a current events blog post about trademarks, the Domestic Emoluments Clause, and the unconstitutional collision of the two Trump orchestrated this week.
I ♥️ the Constitution and Trademarks
I’ve sworn to support or support and defend the Constitution of the United States at least 5 times (three state bar admission oaths, two Federal district court bar admission oaths, and maybe some law school ethics oaths), and I take that seriously. Is the Constitution perfect? Of course not, but it’s pretty damn good, and it’s so good many other countries have modeled their constitutions on it. So yes, I become incandescently upset when a sitting POTUS or their administration blatantly tramples on it or attempts to do so.
Trademark law and Constitutional law are 100% in my legal wheelhouse (fun facts: I once wanted to be a ConLaw professor, and I studied ConLaw under the professors (Ronald Rotunda and John Nowak) who literally wrote the ConLaw treatises every ConLaw scholar uses. I also studied under former White House ethics counsel Richard Painter). That’s why I’m not only outraged but also rather qualified to write about why the events of this week are such a problem.
I Do NOT ♥️Corruption
Before any maga snowflake accuses me of Trump Derangement Syndrome (do go pound sand), I will note that if Obama, Biden, or any other Democrat or Republican POTUS pulled this crap, I’d be just as furious. One of the perks of having my own firm is that I can speak my mind about issues important to me that may be political, and that I can decide to risk the fallout from doing so. I’m not afraid of getting put on any enemies list over this. I’m sure I’m already on one for, at the very least, signing my name along with 334 other solo and small firm attorneys to an amicus brief in the Perkins Coie v United States, DOJ et al. case (1:25-cv-00716-BAH). I digress.
At Issue: Trademarks and the Domestic Emoluments Clause
What exactly am I mad about? The DOMESTIC EMOLUMENTS CLAUSE and its intersection with Trump’s latest US trademark applications, via his DTTM OPERATIONS, LLC company (owned by The Trump Organization, with Don Jr and Eric as the key management personnel, and if you don’t think Trump himself is getting money from that, that’s a level of delusion I can’t excuse).
The Trademark Applications at Issue
- 99652473 for “DONALD J. TRUMP INTERNATIONAL AIRPORT”
- 99652694 for “PRESIDENT DONALD J. TRUMP INTERNATIONAL AIRPORT”
- 99653301 for “DJT”
Aside from applying for registration of those marks in connection with the usual grifting apparel, souvenir, and personal accoutrement items* (which aren’t included in the 99653301/DJT application), he applied for trademark registration for those marks for the following services, which are vital to the construction and operation of any airport:
- Class 37 – Construction of airports; Construction and repair of airports and airport facilities; Advisory services relating to the construction and repair of airports and airport facilities; Advisory services relating to the building and repair of airports and airport facilities; Building and repair of airports and airport facilities; Repair and maintenance of aircraft; Fueling services for aircraft
- Class 39 – Airport baggage check-in services; Airport passenger shuttle services between the airport parking facilities and the airport; Transportation services, namely, providing shuttle services by bus; Airport ramp services, namely, fastening and anchoring aircraft to airport tarmacs; Providing information on airport parking via a website; Airport passenger check-in services; Air transportation; Providing automated check-in and ticketing services for air travelers; Air traffic control services; Air navigation services; Booking of tickets for air travel; Providing a website featuring information in the field of air transportation transportation; Providing flight arrival and departure information; Rental of aircraft hangar space; Rental of aircraft; Providing flight crew services for operating aircraft; Providing aircraft landing and take-off facilities; Storage of aircraft; Parking lot services; Parking garages services; Valet parking; Aircraft parking
- Class 43 – Providing airport lounges; Booking and arranging of access to airport lounges; Restaurant services; Cafe and snack-bar services; Bar services
That means ANY of those services in use in conjunction with that trademark would be infringement unless the business licenses that use or offers it itself.
It gets worse. How does it get worse than that flagrant grift? Like this:
Class 45 – Security control of persons and luggage in airports; Airport baggage security screening
AIRPORT SECURITY!!!!!
In addition to that all just being morally disgusting and repugnant to an extent that any other sitting president attempting to do that would be run out of office on a rail faster than you could blink, it’s WILDLY UNCONSTITUTIONAL.
The Domestic Emoluments Clause
Article II, Section 1, Clause 7 of the Constitution of the United States of America states:
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
This clause is known as the Domestic Emoluments Clause, one of the many clauses in the Constitution designed to expressly prohibit a sitting POTUS from personally profiting from the position of POTUS beyond the salary set forth for the position by Congress.
Now, this clause doesn’t prohibit all kinds of money making from having been POTUS once the person leaves office. N.b. all the books and other memorabilia hawked by former presidents once they’ve left office. That’s legally fine.
HOWEVER, this clause specifically prevents the sitting POTUS from receiving ANY financial benefit from Congress, the US itself, or any state, other than that salary.
See https://constitution.congress.gov/browse/essay/artII-S1-C7-1/ALDE_00000233/ for additional non-partisan information if you won’t take my word for it.
How Trump Business Ownership of Airport Trademarks Would Violate the Domestic Emoluments Clause
How does the Domestic Emoluments Clause apply to these trademark applications? Who names airports? That’s right, Congress does, for airports under federal jurisdiction, and the states do for state-owned airports.
Trump has asked for the Palm Beach International Airport and Dulles International Airport to be named after him. Given that these applications also cover airport construction, it’s not a leap to think there may be future airports Trump wants to be named “DONALD J. TRUMP INTERNATIONAL AIRPORT” and/or “PRESIDENT DONALD J. TRUMP INTERNATIONAL AIRPORT,” especially if the proposed renaming of the Palm Beach and Dulles airports doesn’t happen.
Note that the trademarks for the Ronald Reagan Washington National Airport are owned by the public entity that runs the airport, Metropolitan Washington Airports Authority (DISTRICT OF COLUMBIA Federal Agency Assignee of United States (D.C. Body Politic and Corporate) ), NOT a private company.
If these trademarks are eventually registered (I say “if” like the USPTO run by Trump’s appointees won’t rubber-stamp these applications via a token “examination” faster than Taylor Swift’s legal team files her applications), and if Congress or a state names any airport DONALD J. TRUMP INTERNATIONAL AIRPORT” or “PRESIDENT DONALD J. TRUMP INTERNATIONAL AIRPORT” (we do have airports named after presidents, so let’s assume a Congress run by members obviously afraid to disobey Trump’s wishes will do it) all of the services listed above would be performed in connection with those names.
If DTTM OPERATIONS, LLC owns those trademarks, then the performance of those services in connection with those names would be trademark infringement UNLESS that company licenses that use. Do you think that company would license that use for free? If so, are you new? OF COURSE they’re going to license it for a LOT of money, and that money will go on a winding journey through a convoluted arrangement of companies into the pockets of the Trump family, including Donnie Sr. himself. That is compensation from the United States, and/or from whatever state the airport is in, and that is an emolument. That Domestic Emoluments Clause prohibits a sitting POTUS from receiving such an emolument.
Any penny he keeps from that licensing would thus be a violation of the Domestic Emoluments Clause and thus unconstitutional.
REALLY??????
The company said, about renaming the Palm Beach airport, “To be clear, the President and his family will not receive any royalty, licensing fee, or financial consideration whatsoever from the proposed airport renaming” and that they’re just trying to prevent anyone else from infringing or misusing the name.
Sure, Jan.
This from a family whose wealth has increased by $4 billion in the past year he has been POTUS from deals that would not have happened had he not been POTUS (see https://www.npr.org/transcripts/nx-s1-5704312).
Given who owns the company, and given that anyone else trying to register the name would have to get permission from Trump to register the name, those statements appear as truthful as Trump claiming he is totally exonerated by the Epstein files, or that he’d build the wall and have Mexico pay for it, or that the construction of the ballroom wouldn’t affect the existing structure of the White House, or that he would lower drug prices by 1500%.
They might fool those who don’t know trademark law, but I do know it.
I’d like to think most of us can’t be fooled by their “doth protest too much” statements any longer, too, but boy have I been wrong about that too many times.
My Beloved Constitution Can't Take Much More of This
Alas, under this Trump administration, the Domestic Emoluments Clause, along with the Foreign Emoluments Clause, lies mortally wounded, bleeding out in the street, with no required attempt at rescue from the DOJ or, apparently, SCOTUS (which conveniently found the Emoluments Clauses cases from the first Trump administration moot because by the time the cases got to them, he was no longer POTUS).
Hence, my outrage. Again.
*Grift-o-Matic List of Accoutrements
- Class 14 – Watches, clocks, jewelry and imitation jewelry; Non-monetary coins; Collectible coins; Jewelry boxes; Medals; Tie pins; Tie clips; Cuff links; Tie bars
- Class 18 – Handbags, purses and wallets; Backpacks; Flight bags; Travel bags; Suitcases; Wheeled tote bags; Tote bags; Carry-on bags; Sport bags; Animal carriers; Weekend bags; Pet clothing; Beachbags; Carryalls; Reusable shopping bags; Luggage or baggage tags; Baby carrying bags; Baby diaper bags; Umbrellas and parasols; Cosmetic bags sold empty
- Class 25 – Flight suits; Plastic slippers used in the airport environment when going through security to keep feet and socks clean, dry and sanitary; Shoes for protection of airline passengers’ feet during airport security screening; Plastic socks used in the airport environment when going through security to keep feet clean, dry and sanitary; Shirts; T-shirts; Tops as clothing; Hoodies; Headwear; Hats; Caps with visors; Outer jackets; Shorts; Pants; Skirts; Dresses; Footwear; Shoes; Socks; Sweatshirts; Polo shirts; Swimsuits; Aprons; Infant wear; Robes; Sleepwear; Waist belts; Neckwear; Tank tops; Jump suits; Neckties
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