Choosing a Trademark: Popular Phrases and Memes
Choosing a trademark can be very, very frustrating. I sympathize with businesspeople struggling to name companies, products, and services, and it genuinely pains me when I occasionally must report that a chosen name likely won’t work for any number of legal reasons. Since I would much rather deliver good news instead of bad, I’ve decided to write a series of short blog posts to help people avoid common trademark problems early in the selection stage. Many of my suggestions you can do yourself for free, and all of them will help to avoid the cost and disruptions of late-stage rebranding.
My first recommendation when selecting a trademark: avoid popular or common phrases, including those tempting memes that so quickly make the rounds on social media these days. The whole point of a trademark, the essential thing a trademark must do, is to indicate a single source of products and services. If everyone is using the same phrase for everything, how are consumers going to uniquely associate a popular phrase with you?
We can learn a lesson from Lee Greenwood, the country singer. The Trademark Office recently denied Mr. Greenwood’s attempt to register the trademark GOD BLESS THE USA for pillows and a few other things. The Office refused registration not because someone else already owns the mark GOD BLESS THE USA for pillows but because “consumers ordinarily take widely-used, commonplace messages at their ordinary meaning, and not as source indicators . . . The more commonly a phrase is used, the less likely that the public will use it to identify only one source and the less likely that it will be recognized by purchasers as a trademark.” For Mr. Greenwood’s mark, the Office noted that “a variety of sources prominently display the phrase GOD BLESS THE USA on a range of household items such as mugs, trays, cutting boards, pillows, ornaments, posters, flags, and the like” and that “the phrase GOD BLESS THE USA is displayed, not as a source indicator, but as an expression of patriotism, affection, or affiliation with the United States of America.”
One day after refusing Mr. Greenwood’s attempt to register GOD BLESS AMERICA, the Office also refused his application for PROUD TO BE AN AMERICAN on the same grounds. In recent years, the Office has gotten more adamant in turning away attempts to register common phrases that fail to function as trademarks. A few other victims:
- INVESTING IN AMERICAN JOBS (by Walmart) for promoting public awareness for goods made by American workers
- TEXAS LOVE for shirts and hats
- HELP THE PERSECUTED for charitable services
- TEAM JESUS for clothing, as well as educational and entertainment services promoting religion
- I LOVE YOU for bracelets
How does the Office know that these phrases are commonly used? Simple: the Internet. Which means that you, on your own and for free, can also research whether the mark you have in mind might fail to function as a trademark. If you find that your potential mark is a widely-used phrase that conveys a well-recognized and commonly expressed concept or sentiment, you should consider picking another mark. Doing so will save you the pain and expense that Mr. Greenwood, Walmart, and others have endured to have the Trademark Office do this simple research for them.