In a non-precedential decision, the Federal Circuit upheld the Trademark Trial and Appeal Board’s (“TTAB”) decision that the slogan “Everybody vs Racism” is not registrable as it fails to function as a trademark. For a mark to be registrable, it must meet a threshold requirement. It must be able to “identify and distinguish” the goods and services of the applicant from others and it needs to “indicate the source” of those goods and services. This ruling raises important questions for legal professionals, especially those working with corporate branding and intellectual property law.
According to an analysis by Haug Partners LLP, the decision suggests some limitations in the law around the registration of social or political slogans as trademarks. While these slogans can be powerful tools for companies seeking to align with certain causes or values, they may not necessarily fulfill the legal definition of a trademark.
To carry out their function as source identifiers, trademarks need to be distinctive. This creates two potential problems for social slogans. Firstly, their widespread use might lead observers to perceive them as general expressions of support or advocacy, rather than as indicators of source. Furthermore, given the transient nature of social movements, their longevity as source identifiers might be questioned.
Overall, this ruling underscores the importance for corporations and law firms to thoroughly investigate the registrability of a potential trademark before embarking on a new branding endeavor. It also emphasises the need for balance – while it’s crucial for firms to be socially relevant and responsive, they must also ensure their branding meets legal definitions and standards.