Disasters and protests tend to bring out opportunists who attempt to capitalize on a popular term or rallying cry. This often ends in trademark applicants burning money on trademark applications that will likely end in both rejection by the United States Patent and Trademark Office (USPTO) and the same trademark applicants facing a bit of societal scowl.
In relation to the current global pandemic the following United States trademark applications have been filed:
- CORONAVIRUS SURVIVOR
- I SURVIVED CORONAVIRUS
- I SURVIVED COVID-19
- COVID 19
- I SURVIVED COVID-19
- WE CURED COVID-19
- TOGETHER WE SURVIVED COVID-19
- THE CORONA YOU WANT
- COVID-19 VAX
- CORONAVIRUS SURVIVAL GUIDE
- WUHAN CORONA VAX
- WUHAN CORONA MVAX
To determine the viability of these applications, it is important to understand what a trademark actually is and how the USPTO examines trademark applications.
A trademark is any word, symbol, name, logo or product feature used in commerce to identify the single source of a product or service and to distinguish one provider from another. In effect, a trademark protects brand owners who have built up brand equity from others capitalizing on their brand equity, and protects consumers by giving consumers a consistent source, experience, and quality expectation from the brands they consume. A trademark is always used in connection with particular goods and/or services so that consumers can identify the brand owner as the source of those particular goods and/or services.
During examination at the USPTO, a trademark examiner follows the guidelines laid out in the federal Lanham Act to determine whether the identified trademark application is eligible for registration. The Lanham Act, among other factors, prohibits trademark registration for marks that are merely descriptive, deceptively misdescriptive, generic, or not capable of protection at all because the phrase is so wide spread for a particular set of goods or services that no consumer could ever differentiate or see the applicant as the sole source provider.
- A mark is considered merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services.
- A mark is considered deceptively misdescriptive if a term immediately conveys such an idea but the idea is false, although plausible, then the term is deceptively misdescriptive and is unregistrable under
- A mark is considered generic if the relevant purchasing public understands primarily that mark as the common or class name for the goods or services (i.e. butter as a mark for use in connection with butter)
The examiner will look up the definition of the applicant’s proposed mark, whether through the dictionary or determine if there is a non-dictionary cultural relevance, and determine if the proposed mark’s definition falls into one of the above-mentioned categories with respect to the identified goods and services. If it does, the application will be rejected.
The above-mentioned applications identified use in commerce in connection with the following:
- Novelty buttons
- Hand-sanitizing preparations
- Providing information in the field of medicine
- First aid kits
- Dietary supplements
- Licensing of intellectual property rights
The examiner, much like they did for the marks BIRD FLU SOLUTIONS, BIRD FLU DEFENSE, and HOW TO SURVIVE BIRD FLU, will review these applications and likely determine use in connection with first aid kits, hand-sanitizing preparations, respirators, dietary supplements, and vaccines are likely descriptive or deceptively misdescriptive and reject the applications accordingly. The examiner may ask questions like is the clothing specifically for the service of helping medical practitioners or patients, or does the vaccine specifically treat the virus? While some of these descriptive marks may eventually end up on the supplemental register, that is a subject for a different day.
With respect to societal scowl, I will leave you to judge the merits of branding goods and services in such a way to exclude others who may be really trying to make an impact.
An applicant may be better off donating that filing fee and attorney fee to a local charity than wasting the USPTO’s time while waiting for the inevitable rejection.