Can I trademark a popular phrase in the United States?

Can I trademark a popular phrase in the United States?

Trademark law in the United States is intended to prevent consumer confusion.  Trademarks help consumers distinguish between similar products made by two different companies.  Product manufacturers are granted the exclusive right to mark products with their trademark.  If a product manufacturer marks their products with a trademark that belongs to someone else, that is known as trademark infringement.  Trademark owners can stop infringement on their trademarks with litigation.

A symbol, word, slogan or short phrase can be considered a trademark.  The key element to whether something can be considered a trademark is the association a consumer makes between the symbol and the source of the product.  If consumers associate a symbol with the manufacturer of a product then the symbol can be considered a valid trademark.

Frequently, people who are not familiar with trademark law, get confused about relationship that must exist between a product manufacturer and its trademarks.  This confusion leads people to believe that they can get a trademark on any popular phrase and race to the United States Patent and Trademark Office to register that phrase as their trademark.  It is unlikely that the United States Patent and Trademark Office will grant a trademark application for a popular phrase, unless that applicant can show that there is an association between the manufacturer of the products and the phrase.

Some examples of popular phrases which people have tried to trademark are:

“That’s Hot” – A phrase made popular by Paris Hilton – Ms. Hilton has successfully registered the phrase as a trademark for clothing and multimedia products, but there are about 20 other trademark applications that were denied or canceled filed for various other products by various other companies.

“You’re Fired” – A phrase made popular by Donald Trump – Mr. Trump attempted but failed to register the phrase as trademark for casinos – various other trademark applications have failed to register the phrase as a trademark for various other products.

“Boston Strong” – A popular phrase after the Boston Marathon terrorist attack – various people attempted and failed to register this phrase as a trademark.

The United States Patent and Trademark Office will typically deny applications to register a trademark on a popular phrase because the phrase is merely informational matter or because the phrase is merely ornamental matter.  Whether a trademark application for a phrase is denied because the phrase is considered informational or ornamental the rationale is the same, the phrase does not indicate the manufacturer of the product.

This does not mean that it is impossible to register a phrase as a trademark.  Product manufacturers are free to come up with their own phrases and can register their own phrases as trademarks.  For instance Nike successfully registered the phrase “Just Do It” as a trademark in 1995.  The key difference between Nike and other people that have tried to trademark popular phrases is consumer association.  Nike advertised the phrase and used the phrase on their products to develop a consumer association between “Just Do It” and products produced by Nike.

Popular phrases can be registered as a trademark in the United States if a product manufacturer takes the time to cultivate consumer association between the phrase and the manufacturer’s products.  Merely being the first person to file a trademark application for a popular phrase is not enough to be rewarded with a registered trademark.

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