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Can't trademark your slogan? That's a pile of covfefe!

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

When you read this title, with whom or what did you associate "covfefe"? Of course, this is the nonsensical word President Trump used in a tweet, possibly when he was tired and in loose control of his typing fingers. Now people associate it with his persona and communication style.

According to part 2 of an interesting March 11 article in Above the Law, at the time of its writing, 40 federal trademark applications had been filed requesting registration of the term "covfefe" as a trademark for association with a variety of goods. According to the author, the U.S. Patent and Trademark Office had not yet approved any of the "covfefe" applications for registration.

The problem with covfefe is that people do not associate it with a source, much less a single source, of any good or service, one of the main functions of a trademark. Let's face it, people think of the president when that term comes up.

The public will not identify with a source, "but rather only as conveying an informational message," e.g., quoting the President or commenting on his use of the term. That is not source identification.

Further, the USPTO reportedly also says that "covfefe" cannot ever become distinctive over time because of its "viral propagation and its association with President Trump."

To take a broader look, the USPTO has accepted many trademark registrations for invented words or phrases when they properly identify a good or service in association with its source as distinguished from products from other sources. For example, "Linsanity" was registered in the name of Jeremy Lin, the basketball player with whom the term was associated, reports Language Connections. "Ancient Chinese secret" is a registered trademarked in association with the laundry detergent Calgon.

This area of trademark law can be quite complex, so if you are considering the intellectual property value of a catchphrase, especially if it is or will be associated exclusively with your business, discuss your options and rights with an experienced trademark lawyer.

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