Who can forget when President Trump made this tweet: “Despite the constant negative press covfefe”? No one knew what it meant, and the tweet became instantly infamous. That same day, May 31, 2017, an enterprising trademark applicant, filed a U.S. trademark application for #COVFEFE in Class 25 for hats; T-shirts, and other clothing items; however, last week the Trademark Trial and Appeal Board (TTAB) upheld the USPTO’s refusal to register the mark on the grounds that the mark, #covfefe, does not function as a trademark. The TTAB’s reasoning was that the mark cannot function as a source identifier, is a political message, and for these reasons is ineligible for federal registration.
What is a trademark?
In this case, a trademark is a word used word used by an individual to identify the source of its goods in the marketplace and distinguish them from those sold by others. However, in this particular case, given the fact that everyone was talking about covfefe, it’s not possible to distinguish the applicant’s goods from anyone else’s. Just two months after the infamous tweet, a wide variety of covfefe memes had already been created and major news outlets had been discussing and making fun of the President’s tweet. Almost immediately after the May 31, 2017 tweet, various merchandise appeared for sale across the Internet, including various items, home décor items, jewelry, and bumper stickers, to name a few. The TTAB said, “the more common a phrase is used, the less likely the public will use it to identify only one source and less likely that it will be recognized by purchasers as a trademark.” Even if the applicant were to be granted his trademark, how could any member of the public distinguish a #COVFEFE T-shirt of hat from that of any of the other enterprising merchandisers? The answer is, it would be impossible.
Terms Ineligible for Federal Protection
For these reasons, not all terms or phrases are eligible for federal trademark protection. The purpose of the Trademark Act is register trademarks, not just random words. Not every designation used on a product is necessarily a trademark and just because an applicant intends for it to be a trademark does not make it so. Social, political or information messaging is not eligible for trademark protection under the Trademark Act. The following are some examples provided by TTAB case law:
No More RINOs! (short for “No More Republicans in Name Only”) – refused as political message
DRIVE SAFELY – refused as a safety admonition
I (heart) DC – refused as an expression of enthusiasm, affection or affiliation with Washington, DC
If you are thinking of capitalizing on a newsworthy moment, be sure to consult with a trademark attorney prior to filing your application. Please contact us for more information.
Stacey C. Kalamaras is the founding partner of Kalamaras Law Office, LLC. She has extensive intellectual property experience with a particular focus on trademark prosecution and enforcement. She has protected some the world’s largest brands in more than 150 countries and specializes in helping small and medium sized businesses grow and protect their brands. Contact her at firstname.lastname@example.org.
Stacey is also the founder and lead instructor of Trademarkabilities®, an online trademark academy for lawyers, whose mission it is to prepare lawyers to be confident and effective practitioners before the USPTO. To learn more, please visit https://www.trademarkabilities.com/.