Coronavirus trademark applications are mostly a waste of money
In the first few weeks of March 2020, dozens of trademark applications have been filed with the USPTO featuring Coronovirus or Covid-19 the mark. See search results below for marks featuring “CORONAVIRUS” or “COVID. A few of them were filed by lawyers.
recent USPTO trademark application filing for use with clothing. http://tsdr.uspto.gov/#caseNumber=88838159&caseType=SERIAL_NO&searchType=statusSearch
Nearly all of them will be rejected, and are a waste of time and money and resources.
Why will these filing be refused? They are unlikely to ever get registered or approved by the USPTO because they:
- almost certainly fail to function to indicate the source of an actual product or service, which is the real job of a trademark;
- feature widely used messages, which are barred from registration under TMEP Sect. 12.02.04(b);
- are likely to be used ornamentally on the front of a shirt or mug or sticker and don’t truly identify who makes the product; and
- violate the public interest by using a term or phrase that is common.
Even if the reasons above did not disqualify the applications, nearly all of them would be at risk of facing a “likelihood of confusion” refusal with one that was filed earlier (if any get registered).
Note that this is not to say that it is impossible to have real brands and creative marks arise from this pandemic; it is. For example, SOCIAL DISTDANCING could be a creative mark for online dance instruction; CORONAPOCALYPSE could be a creative name for a podcast featuring telescoped words.
Past examples from situations when numerous applications were filed featuring terms that became part of the social and cultural lexicon are illustrative:
- BOSTON STRONG saw about a dozen trademark application filings. None were registered.
- COVFEFE tweet from the President yielded more than three dozen trademark applications filings at the USPTO. None are registered.
If you were thinking about filing to try to register one of these marks, don’t waste your time and money. The USPTO filing fees will almost certainly be a waste and they are not refundable. Furthermore, these filings are taking USPTO resources away from legitimate applications as they still need to be reviewed by an examiner just like any other application.
Finally, even if I’m wrong and some of these marks becomes registered, good luck enforcing them. One of key functions of a trademark registration is to enable the owner to stop others from using something confusingly similar. I cannot foresee a court entertaining a serious argument to try to enforce one of these common phrases to stop someone else. On top of the above points regarding the weakness of the phrase as a trademark, profiting in such a manner from this pandemic is unlikely to be well received by the court.
