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By Matthew F. Abbott
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In the age of trending hashtags and rapid news cycles, certain social and political catchphrases succeed in capturing the zeitgeist and streak meteor-like across the cultural landscape.   A common misapprehension of trademark law is that it may be used by a quick acting applicant to lock up exclusive rights in the use of these culturally significant phrases to sell branded merchandise.  While this practice has been consistently rejected by the U.S. Patent & Trademark Office (USPTO), it has continued for years, fueled by a turbulent political landscape and a widespread misunderstanding as to the limits of registrability under the Lanham Act.

On May 31, 2017, President Trump tweeted as follows:

Trump’s inscrutable use of the term “covfefe” sparked immediate widespread speculation and discussion throughout traditional and social media. That same day, John E. Gillard, the first of twenty five similar applicants, applied to register the mark #COVFEFE on the Principal Register for “hats; T-shirts, wristbands as clothing; hoodies; jackets; jerseys; ties as clothing; tops as clothing” in International Class 25.  The Trademark Examining Attorney refused registration of the proposed mark on the basis that #COVFEFE does not function as a trademark for the goods identified in the application.  Gillard thereafter appealed to the Trademark Trial and Appeal Board (TTAB), which affirmed the refusal to register in a recently issued decision.

I. Prior Attempts to Register Social and Political Catchphrases

Mr. Gillard is not the first to attempt to register a trademark for a phrase that has gained widespread notoriety and cultural significance as a result of its prevalence in social and traditional media.

  • In 2011, eleven trademark applications were filed for the phrase “Boston Strong,” a rallying cry for the city of Boston following the Boston Marathon bombing.
  • In 2015, two trademark applications were filed for the phrase “Je Suis Charlie,” words offered in solidarity for the victims of the terrorist attack at the Paris offices of the magazine Charlie Hedbo.
  • In 2017, seven trademark applications were filed for the phrase “Nevertheless, She Persisted,” quoting Senate majority leader Mitch McConnell’s explanation of why he silenced Senator Elizabeth Warren when she attempted to read a letter that the late widow of Dr. Martin Luther King Jr. wrote criticizing Jeff Sessions during his confirmation hearings for Attorney General. The phrase quickly became a feminist rallying cry and hashtag used to support Senator Warren.
  • In October 2016, twenty trademark applications were filed for the phrase “Nasty Woman” following Donald Trump’s use of the phrase in reference to Hilary Clinton during the third presidential debate. The phrase instantaneously became a feminist rallying cry and launched a cottage industry of “Nasty Woman” products
  • The turbulent 2016 presidential election also inspired trademark applications for several other phrases, including “Bad Hombre,” “Alternative Facts,” “Basket of Deplorables” and “Grab Them By The Pussy.”

Each of these applications were refused by the USPTO on the basis that the proposed mark could not function as a trademark by indicating the applicant as the source of goods and services.

II. Registrability of Social and Political Catchphrases under the Applicable Law

While there is a common misapprehension that the prompt registration of a trending catchphrase will grant exclusive rights to the use of that catchphrase, the law is well-settled that in order to register a trademark, the proposed designation must actually function as a trademark by identifying the applicant’s goods and distinguishing them from goods sold by others. 15 U.S.C. § 1127; D.C. One Wholesaler, Inc. v. Chien, 120 U.S.P.Q.2d 1710, 1713 (T.T.A.B. 2016).  The Trademark Manual of Examining Procedure (TMEP) § 1202.04 provides that “merely information matter fails to function as a mark to indicate source and thus is not registrable.” In particular, “if consumers are accustomed to seeing a term or phrase used in connection with goods or services from many different sources, it is likely that consumers would not view the matter as a source indicator for the goods or services.” Id.  The “critical inquiry” in determining whether a phrase functions as a trademark is now the proposed mark is viewed by the relevant public. D.C. One Wholesaler, 120 U.S.P.Q.2d at 1713.  A term or phrase is merely informational where consumers are accustomed to seeing it used in everyday speech by a variety of sources.  TMEP § 1202.04(b).  Such “widely used messages” include “slogans, terms or phrases used by various parties to convey . . . social, political, or similar informational messages that are in common use or are otherwise generally understood.” Id.

Based on the foregoing, informational political or social slogans, such as “Nasty Woman” or “Boston Strong,” are highly likely to be ineligible for trademark registration

III. Consideration of “#COFVEVE” By the TTAB

Facing an uphill battle in his proposed registration of “#COFVEVE,” Mr. Gillard argued to the TTAB that “#COFVEVE” was distinguishable from previous cases because the term was a “unique and fanciful wording” that was neither a common slogan nor rallying cry, and would not be confused as originating from Trump because it had no definition or true meaning. Failing to substantively address why consumers would view the proposed mark as an indicator of his goods where numerous other “#COFVEVE” goods were available from a variety of other sources, Mr. Gillard argued only that the issue was something he “would have to deal with on [his] own accord.”

Assessing how the designation would be perceived by the relevant public, the TTAB relied on the substantial evidence of articles, memes and tweets regarding the word “covfefe,” as well as “covfefe” merchandise available from numerous sources including t-shirts, hats, mugs, home décor, wines, ales, bumper stickers and specialty sandwiches. The TTAB ultimately concluded that, although there is no true meaning of “covfefe,” the term “is in the nature of a verbal Rorshach test, in which users and observers of the word can project onto it any meaning they wish,” and had thus been used frequently in a non-trademark context.  The TTAB found further that, because the proposed mark was a hashtag, it had functioned to promote discussion of the word “covfefe” using Twitter and would therefore be unlikely to indicate a source of applicant’s goods to the public.  Finally, the TTAB found that the public was accustomed to seeing “COVFEFE” displayed on many varied goods, from numerous sources, and would not view “COVFEFE” as source indicator specific to the applicant.

IV. Conclusion

By their very nature, trending social and political catchphrases are difficult to trademark because they are inherently informational and are unlikely to function as a source indicator based on their widespread use in a variety of media and trade sources. This does not prevent entrepreneurs from harnessing the sudden popularity of a phrase by manufacturing and selling goods that contain that phrase.  However, such entrepreneurs should be aware that they are unlikely to be able to exclude others from selling goods bearing that phrase, let alone obtain a federal trademark registration for that phrase.