Summary
The TRUMP trademark for sneakers (U.S. Reg No. 7758981) was filed on a “use in commerce” basis, meaning the mark was required to be in use in commerce as of the application filing date, June 26, 2024.
However, the specimen submitted to the USPTO shows that the goods were only available for pre-order at that time and not actually available for shipment. The USPTO’s examination manual (TMEP §904) makes clear that advertising goods for pre-order when they are not yet available does not qualify as use in commerce.
Instead of issuing an Office action to initially refuse registration, the USPTO approved the deficient application for registration. The examination and apparently erroneous approval in favor of Trump took place in late-January 2025, shortly after Trump took office for a second time.
Because the mark was not in use in commerce as required on the filing date, the registration is now vulnerable to cancellation through the USPTO’s re-examination procedure. Any third party may request a re-examination by submitting evidence establishing a prima facie case of non-use together with the required filing fee. Based on the available evidence, it appears a prima facie case can be established.
About the TRUMP Trademark for Sneakers
On June 26, 2024, a Donald Trump intellectual property holding company, DTTM OPERATIONS, LLC, applied to register TRUMP as a trademark for sneakers. The application was examined in late-January 2025. No substantive issues were raised by the USPTO during the examination, and the trademark was registered on April 15, 2025.
This trademark is being used in connection with the TRUMP line of sneakers. You may remember these sneakers being parodied by Shane Gillis on SNL. Here are some images from gettrumpsneakers.com of sneakers sold under the TRUMP brand:
The Use in Commerce Requirement
For a trademark to be registered with the USPTO, it must be in use in commerce (with exceptions based on foreign rights that aren't relevant to the Trump sneakers registration). In applications that don't involve foreign rights, applicants must designate one of two filing bases:
Section 1(a) – Use in Commerce. This is for applicants already using their trademark in commerce with the goods listed in the application as of the application filing date.
Section 1(b) – Intent to Use. This is for applicants not yet using their trademark in commerce with the goods listed in the application, but who intend to do so within the statutory deadline. They cannot obtain registration until they have actually begun using their trademark in commerce.
The TRUMP sneaker application was filed on June 26, 2024, on a Section 1(a) basis. In order for this trademark to be registered, the USPTO therefore needed to be satisfied that the trademark was in use in commerce with sneakers as of the application date, June 26, 2024.
How the USPTO Determines Whether the "Use in Commerce" Requirement Is Satisfied
The USPTO receives almost a million trademark applications each year, so it's not practical for it to exhaustively investigate and verify "use in commerce." Instead, the USPTO relies on a boilerplate declaration by applicants and an examination of a specimen they submit (usually just a photo or screenshot) showing the trademark being used in commerce. If the specimen appears compliant and the declaration is properly signed, the USPTO accepts that the "use in commerce" requirement is satisfied.
When examining whether the specimen is compliant, attorneys at the USPTO follow the Trademark Manual of Examining Procedure, which provides detailed guidance for evaluating specimens and other application requirements.
The Specimen Submitted for the TRUMP Application
The specimen submitted for the TRUMP application comprised three screenshots from the gettrumpsneakers.com website. You can view the full specimen here. This type of specimen, a website screenshot showing goods being sold in connection with a trademark, is ordinary and not in itself problematic. However, I want to bring to your attention two parts of the specimen:
Page 1 of the specimen explicitly states that the goods are only "estimated to ship in July 2024."
Page 2 of the specimen again makes clear that the goods are not yet available, explicitly referring to the sale as a "pre-order."
A Pre-Order for Goods Not Yet Available for Sale Is Not Use in Commerce
As shown above, the specimen submitted for the TRUMP application clearly shows that it is advertising a "pre-order" for goods that are only estimated to ship at a future date.
Section 904 of the USPTO Trademark Manual of Examining Procedure explains that such a specimen does not show use in commerce and that the examining attorney must refuse registration. It states,
In examining a specimen filed with an application under 15 U.S.C. §1051(a)...the examining attorney must refuse registration if the specimen indicates that the goods have not been “sold or transported in commerce.” 15 U.S.C. §1127. For example, a webpage for placing pre-sale orders for goods that are not yet available does not show use of the mark in commerce in connection with the goods, even if it otherwise meets the requirements for an acceptable display associated with the goods.
What Should Have Happened Next
Registration should have been refused. DTTM Operations LLC, the Trump IP holding company that filed the application, could have then amended the filing basis to 1(b) and submitted a new specimen if/when the TRUMP trademark was actually being used in commerce in connection with sneakers.
What Actually Happened Next
Registration was not refused. Instead, the trademark was approved for publication for opposition (a necessary step after the application is approved before registration can occur).
What Is Happening Now
The trademark is going to stay on the register until someone does something about it.
What Can Be Done
Within the first five years after registration (up to April 15, 2030), any third party can petition for the application to be re-examined for a fee of $400. If the evidence in that petition establishes a prima facie case of non-use as of the relevant date, the USPTO may re-examine the application. Based on the available evidence, it appears this prima facie case can be established.
If the USPTO then finds that the trademark was not actually in use in commerce as of the relevant date, it may cancel the registration.
Again, any third party can file the petition to initiate this process. Even you!
Any Requests for the Future Trump Trademark Articles?
If there is a Trump-connected trademark you'd like me to analyze, please send me a DM or let me know in the comments.
Final Words
There is a broader lesson here beyond the approval and survival of the TRUMP trademark registration for sneakers. In U.S. trademark law, registration is not bullet proof. Registered trademarks can still be challenged and cancelled. If a dispute arises, it is likely that the other party is going to closely scrutinize the validity of your registration. When filing an application, it's important to not just plan for examination by the USPTO, but also for close scrutiny by an adversary (or some lawyer who decides to scrutinize your application for content).
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