President Trump recently tweeted, without context, "Despite the constant negative press covfefe". Within minutes, the Internet was ablaze with commentary, speculation, and humor regarding the newly invented term. Within 48 hours, 17 entities had filed trademark applications with the United States Patent and Trademark Office ("USPTO") seeking registration of marks using "covfefe" for an array of goods and services including clothing, coffee, beer, and investment advice. The desire to capitalize on a national buzzword is understandable. But what is the likelihood of success? And what rules govern registrability? There's a lesson here for all trademark owners. Here's our take.
Trendiness May Militate Against Registrability.
The USPTO regularly refuses registration to trademarks that consist of phrases commonly used in everyday parlance. That's because the ubiquity of the phrase means the public is less likely to consider it as identifying a single source of goods or services, and thus, to perceive it as a trademark. Instead, because the phrase is in such frequent use by so many sources, the USPTO will argue that the public is likely to perceive it as merely providing information or conveying a message. Examples of trademark applications that have been refused registration based on this reasoning include I ♥ DC, I BELIEVE THAT WE WILL WIN, and ONCE A MARINE, ALWAYS A MARINE.
The USPTO has already refused registration of other trademark applications seeking to take advantage of the viral nature of President Trump's remarks. For example, three different entities have filed trademark applications for variations of then-candidate Trump's infamous "grab them by the pussy" statement. All three applications have received preliminary refusals based, in part, on the fact that the applications were for a well-publicized quote from Mr. Trump that is widely used by the public to refer to him and to convey information, rendering them unable to function as an indicator of source.
While the inherently fanciful nature of "covfefe" does give it a leg up on previous quotes from the President, we believe the frenzy surrounding its creation will lead to the same refusal. In less than a week, indeed in mere hours, "covfefe" became the subject of countless news articles and social media posts, and is already being used on merchandise. This pervasive public exposure means that the USPTO likely will refuse to register "covfefe" as a trademark for the same reasons it has refused registration of other applications based on quotes from the President, namely, that the fervor surrounding it in the popular culture prevents it from functioning as a trademark.
So what steps can you take to strengthen your trademark application for fanciful, viral quotes?
File before the frenzy. Filing a trademark application early in the quote's life, before it has become a nearly universal phrase, may increase the chances that the application will be successful.
Clear the rights in the mark. Make sure you are not infringing anyone else's intellectual property rights by seeking to trademark the quote. While single words or short phrases typically are not copyrightable, use of quotes from public figures can lead to right of publicity and even trademark issues, depending on the circumstances surrounding the quote's creation and dissemination.
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