Trademark application denied for WORST MOVIE EVER! IN RE MORIARTY

Trademark application denied for WORST MOVIE EVER! IN RE MORIARTY

A trademark is something that consumers associate with the manufacturer of a product.  Traditionally a trademark is thought of as a symbol, word or phrase, but anything that signals to consumers the identity of the manufacturer of a product can be eligible for trademark protection.  In the United States trademark rights are derived from the use of the trademark in commerce.  A trademark can be registered with the United States Patent and Trademark Office to strengthen the rights associated with the trademark but registration is not necessary for the trademark user to be granted a claim to the trademark.

When a trademark is successfully registered with the Untied States Patent and Trademark Office, the trademark is placed on either the principal register of the supplemental register.

The Principal Register is for trademarks that are distinctive, either because the trademark has unique characteristics or because the trademark has been used for a long time. A trademark which is not being used in commerce yet can be placed on the principal register.  The Supplemental Register is for trademarks that are descriptive.  Only trademarks that are currently in use in commerce may be registered on the supplemental register.

To be placed on either register, however, the trademark must meet certain requirements.  One of those requirements is that the applied for trademark functions as a trademark.  If a trademark application is filed  to register something which does not indicate the source or origin of the identified goods or services and distinguish them from those of others does not meet the statutory definition of a trademark and may not be registered, regardless of the register on which registration is sought.

IN RE DONALD E. MORIARTY, Serial No. 86367823 (TTAB 2020) is an example of a trademark application which was denied because it failed to function as a trademark.

This case begins when applicant filed a trademark application to register “WORST MOVIE EVER!” on the Principal Register for goods identified as “parody of motion picture films and films for television comprising comedies and dramas featuring a mashup of different motion picture films.”  Notice of Allowance for the Application was issued on June 16, 2015.  Three years later Applicant filed its Statement of Use, which is required to finalize the trademark registration process.

Upon examination of the Statement of Use, the Trademark Examining Attorney refused registration of Applicant’s mark on the ground that the applied-for mark is a slogan or phrase that does not function as a trademark to indicate the source of applicant’s goods.  Applicant appealed to the Trademark Trial and Appeal Board (TTAB).

At the TTAB hearing the Examining Attorney argued that the applied-for mark WORST MOVIE EVER! is merely a commonplace slogan used by a variety of sources and merely conveys an ordinary, familiar or well recognized concept or sentiment, that is, that the movie in question is “the most wanting in quality, value or condition of all time.”  In support of the refusal, the Examining Attorney submitted a number of news stories and articles about movies to establish that the phrase “WORST MOVIE EVER!” is commonly used by the authors to convey the idea that the movie being discussed is “the most wanting in quality, value or condition of all time.”

The applicant argued several points but the most interesting one was that the Examining Attorney’s evidence falls short because it does not show “that film production companies use the term WORST MOVIE EVER! to convey information about their own films.”  The TTAB noted that use by competitors is not necessary, it is sufficient if the evidence establishes that potential purchasers would perceive the phrase as merely an informational slogan devoid of trademark significance.  Mere intent that a term function as a trademark is not enough to make a term a trademark.

The TTAB concluded that WORST MOVIE EVER! would not be perceived as a trademark to identify Applicant’s goods from the like goods of others and affirmed the refusal.

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