Can I trademark a catch phrase in the United States?

A trademark is something that a product seller uses to identify the products it sells. A word, phrase or symbol is what most people commonly think of as a trademark, but anything that a product seller uses to distinguish its products from competitor’s products can be granted trademark protection. Obtaining a right to a trademark law in the United States is based on using the trademark in commerce. The first person to use a trademark to brand products is considered the senior user and has priority over junior users of a trademark. A trademark can be registered with the United States Patent and Trademark Office to strengthen the rights associated with a trademark, however registration is not required to begin using a trademark to brand products.

The key feature of a trademark is that it signals to consumers the identity of the producer of a product. If a product producer attempts to register a trademark on something which does not function as a source identifier, the United States Patent and Trademark Office will refuse to register the trademark.

The world is becoming increasingly interconnected. The internet and social media allow ideas to spread across the world in the blink of an eye. As social movements spread on the internet a single word of phrase often emerges that embodies the emotions of a social movement. Phrases like OCCUPY WALL STREET, BOSTON STRONG, PLAY GLORIA and JE SUIS CHARLIE mean little in the abstract, however strong emotions are attracted to those phrases when put in context with event that spawned the phrase. When society attaches strong emotion to anything, there are people that attempt to extract a profit.

When a new rallying phrases emerges posters, stickers and t-shirts are printed with the phrase. The sellers hope that they can capitalize off the strong emotions the public attach to emotionally charged phrases. Some sellers attempt to corner the market by filing a trademark application which claims the phrase. This practice can be futile because trademark law is not intended to reserve emotionally charged phrases for profit.

Phrases that are rallying cries for a greater societal movement are considered merely informational matter. Merely informational matter fails to function as a trademark to indicate source of a product and thus cannot be registered as a trademark. Trademark Manual of Examining Procedure (TMEP) § 1202.04 addresses informational matter.

Matter is merely informational and does not function as a mark when, based on its nature and the context of its use by the trademark applicant and/or others in the marketplace, consumers would perceive it as merely conveying general information about the goods or services or an informational message, and not as a means to identify and distinguish the applicant’s goods/services from those of others.

Because the function of a trademark is to identify a single commercial source for particular goods or services, 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. In re Eagle Crest, Inc., 96 USPQ2d at 1230. Furthermore, the mere use of the “TM” or “SM” notation, in and of itself, cannot transform an unregistrable term into a trademark or service mark. See In re Volvo Cars of N. Am. Inc., 46 USPQ2d 1455, 1461 (TTAB 1998).

The fact a phrase which is merely informational cannot be trademarked, does not mean no one is allowed to produce products featuring the phrase. Just the opposite, anyone who wants to print the phrase on products is free to do so without concern that they are infringing on someone else’s trademark rights. When a new phrase emerges as a rallying cry for a social movement trademark law will not grant a single party the exclusive right to the phrase.

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