Thin Trademark Coverage Could Flush Mexico’s Trump Toilet Paper

By Emily Pickrell

A Mexican attorney who plans to roll out Trump toilet paper in response to President Donald Trump’s disparaging remarks about Mexicans may face a trademark challenge over the product’s logo—which includes a drawing resembling Trump, intellectual property experts in Mexico said.

“The main motivation for the business is to support our migrants in the midst of all the things that have been happening, with Mr. Trump saying how bad Mexicans are and how we are sending to the U.S. rapists and drug dealers,” Antonio Battaglia, an attorney in Leon, the largest city in the central Mexican state of Guanajuato, told Bloomberg BNA.

“The main idea is that it is a way of responding with a Trump product that has nothing to do with Donald Trump or any of his companies,” said Battaglia, who plans to start producing Trump toilet paper by the year’s end.

Battaglia received a trademark registration for the name “Trump” to use in connection with the product June 12 from the Mexican Institute of Industrial Property. But rights were not assigned for Battaglia’s planned packaging, which includes a logo with a stylized picture of a man with a pompadour hairdo.

It’s uncanny resemblance to Trump could pose a problem, Carlos Davila, an intellectual property attorney for Baker McKenzie in Mexico City, told Bloomberg BNA in an exclusive interview.

“In the paper image, you can see that the logo has this particular trait of Trump hair, which is a clear replica of his trademark hairdo,” she said.

For Battaglia, the point is not comedy but solidarity with Mexican immigrants to the U.S., for whom he wants to build support to combat a negative perception that he says Trump encouraged. Battaglia plans to contribute 30 percent of all proceeds from the sales of Trump toilet paper to programs supporting Mexican immigrants.

During his presidential campaign, Trump promised to build a U.S.-Mexico border wall to keep out illegal immigrants and said Mexican immigrants were “bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”

The toilet paper, said Battaglia, “is a social response that is intended to mitigate this attack.”

Trump Has Many Meanings

The Mexican trademark office likely issued the rights to use the name ‘Trump’ for toilet paper on the basis that the word has several meanings in the dictionary, Davila said.

Mexican trademark law protects individuals from having their name used as a trademark by others but specifies that the protection applies to a person’s full name. In other words, “Donald J. Trump” would have been much more difficult for Battaglia to register—but the stand-alone “Trump” is not protected.

Article 4 of the Mexican Industrial Property Act also states that a registration can be refused under “moral” grounds but that would be a weak case, according to Roberto Garza Barbosa, a professor of intellectual property law at the Monterrey Institute of Technology.

“If Donald Trump wants to sue to nullify that registry, he has to accept two things: one, that the drawing looks like him, and the second—which I think is the most painful— that it hurts badly,” Garza said. “That is why it is not a good idea to fight parody.”

Commercial Purposes

As far as using an individual’s replica for artistic purposes, it’s allowed under Mexican law. But getting a trademark registration for an individual’s likeness for a commercial purpose is much more difficult under Mexican federal and state laws, Alejandro Luna, a partner with Olivares, an intellectual property law firm in Mexico City, said.

“If I were Mr. Trump, I would argue that I do not want my image being used for commercial use, and that the other side would need to demonstrate that Trump has some characteristics that would lead another person to have free rights to this image,” he said.

Mexican law, however, also provides for the right of individuals to ridicule and parody public figures, which could provide a good free-speech defense against a possible challenge.

“When you are dealing with a public figure, their scope of protection on the basis of moral and self-image rights is much lower,” Davila said. “This situation is an interesting clash between trademark rights and freedom of speech. For me, it is not clear where the line is.”

As for Battaglia, he’s not worried about a legal challenge. The use of the Trump name has too many different meanings to be exclusively owned by Donald Trump, he said, and the logo doesn’t look enough like him to be of concern.

“It is a drawing and has nothing to do with him,” Battaglia said. “Furthermore, all the things he has said are public—he is a public image, and everything he says is in the public domain.”

To contact the reporter on this story: Emily Pickrell in Mexico City at correspondents@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.