To be registrable, a trademark must be able to “identify and distinguish” the goods and/or services of the applicant from others, and “indicate the source” of those goods and services to US consumers.  To determine whether a slogan functions as a source identifier, the US Trademark Office first focuses on how the slogan is used in the marketplace and how such slogan is perceived by US consumers.  Generally, a slogan that merely conveys factual information or a familiar sentiment is not likely to be perceived by consumers as a source identifier for a particular applicant’s goods and/or services.

One cannot co-opt a commonly used phrase or slogan and claim exclusive trademark rights.  A recent precedential decision from the US Court of Appeals for the Federal Circuit  illustrates this point:  In re GO & Associates, LLC, ___ F.3d ____  No. 22-1961 (Fed. Cir. 2023). 

As background, GO & Associates, LLC applied to register the slogan  “Everybody vs Racism” as a trademark for goods including tote bags, t-shirts, hoodies, tops, bottoms, and headwear, and services comprised of “promoting public interest and awareness of the need for racial reconciliation and encouraging people to know their neighbor and then affect change in their own sphere of influence.”   The slogan was adopted by GO in the wake of the George Floyd killing. 

The US Trademark Office refused registration on the grounds that the “Everybody vs. Racism” slogan was merely “an informational social, political, religious, or similar kind of message” and thus failed to function as a source identifier for GO’s goods and/or services.  The Examining Attorney cited dozens of examples of the same “Everybody vs. Racism” slogan being used in the US, including by referees in the National Basketball Association, as titles of rap songs, in podcasts, in church sermons, and in YouTube videos, and on various articles of clothing.  Because there were a myriad uses of the slogan as political or social commentary, consumers would not consider any one person or entity as the source for goods or services based on use of the slogan.  In other words, “Everybody vs. Racism” did not point consumers to one person or one entity as the source of goods and services.  

The Trademark Trial and Appeal Board affirmed the refusal, and noted particularly that allowing  “Everybody vs. Racism” to be registered “would [have] seriously impeded the heartfelt need of citizens of the country to express that everybody should be against racism.”  Such “informational matter” cannot obtain trademark protection because consumers are unlikely to perceive the matter as a trademark for any goods or services.  The Federal Circuit in a precedential decision affirmed the refusal to register “Everybody vs. Racism”.  This decision highlights the distinction between a trademark and a mere expression of a message or idea.

Interestingly, the Federal Circuit contrasted  “Everybody vs. Racism” with the slogan “Make America Great Again”.  The MAGA slogan was not widely used in US commerce until introduced by the Trump presidential campaign.  Even though the MAGA slogan does contain informational matter, the MAGA slogan identifies a single source recognized by US consumers and therefore does serve as a trademark.  The Federal Circuit identified other informational slogans that are valid trademarks, too:  Nike’s “Just Do It”, DeBeer’s “A Diamond Is Forever” and Verizon’s “Can You Hear Me Now?”.   In summary, US Trademark Law does permit a slogan to be registered so long as the slogan also functions to identify a single commercial source.  The Federal Circuit’s decision in the GO case balances trademark rights against maintaining freedom for the US public to support important causes and societal issues.

A key takeaway from the “Everybody vs. Racism” case:  individuals and businesses  should not adopt trending slogans related to social movements as part of their branding strategy.  These social movement slogans are not capable of acquiring meaning as a source indicator and therefore cannot function as trademarks.  No matter how tempting it may be to use a trending slogan that is part of a timely social movement, exclusivity over that slogan will not be achieved.  The investment made to attempt to develop exclusivity will be lost.    

But, if you have coined a new slogan for use with goods or services, consult with experienced trademark counsel for advice on trademark screening, clearance and registrability.  And, once the slogan is adopted as your trademark, note the importance of registering and properly policing trademark rights to maintain their value, prevent encroachment and abate infringement by third parties.    

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