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With the recent death of George Floyd, Black Lives Matter has become a phrase that means so much for so many people. For some, the saying serves as a reminder that Black lives should not be subjected to police brutality, killings, or disenfranchisement. For others, the phrase serves as a confrontation to America for its past (and current) treatment of Black people.
The phrase “Black Lives Matter” has been used to campaign against various forms of racism and to raise awareness of basic human rights and racial equality for Black people. Black Lives Matter has been used to emphasize just that.….that Black Lives Matter.
Now when it comes to trademarks and Black Lives Matter, many trademark applications have been filed during the influx of marches and protests.
Why even get a trademark you may ask?
(Well I’m glad you asked, lol.) A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. In order to lessen customer confusion, have federal protection, and to prevent others from profiting off of your brand, one would get a trademark.
Some recent trademarks that have been filed are: “Black Lives Matter”, “Black Lives Matter Bear”, “Black Lives Matter Moscato”, 2020 Black Lives Matter”, “Black Lives Matter Academy”, “Black Lives Matter Southside”. I’ll stop there because the list goes on and on.
On these applications, the purpose varies. Some purposes listed are:
· administration of a program to promote community service;
· athletic apparel;
· charitable services such as academic mentoring of school age children; and
· wine.
Although these are creative, the United States Patent and Trademark Office may not approve of these trademark applications. In the past, they have rejected Black Lives Matter applications because they have deemed the phrase as “a slogan or term that does not function as a trademark or service mark to indicate the source of applicant’s goods and/or services and to identify and distinguish them from others”. In these cases, Black Lives Matter “is an informational social, political, religious, or similar kind of message that merely conveys support of, admiration for, or affiliation with the ideals conveyed by the message”.
In other words, the public perception of the wording “Black Lives Matter” does not necessarily come from or originate from such applicant. As further explained on a rejected application,
"Because consumers are accustomed to seeing this message used in ordinary language by many different sources, they would not perceive it as a mark that identifies the source of applicant’s goods and services but rather only as conveying an informational message. Put another way, the public would not perceive the slogan “BLACK LIVES MATTER” as source-identifying matter that identifies applicant alone as the source of the goods/services but rather as an expression of support for anti-violence advocates and civil rights groups. In other words, potential consumers would simply access the publications and enlist or engage in applicant’s services because they want to support the cause that the slogan represents, not because they believe the slogan indicates the source of such goods and services”.
Some of these applications have not been assigned to a trademark attorney just yet. So, we will see how things unfold. But based upon past rejections, we can formulate an educated guess on how the office will proceed in the future.
And while I’m here, Black Lives Matter. Now and forever more. #blacklivesmatter #blm
Until next time,
Lawyer Jas