A few weeks ago, President Trump made a tweet typo (or did he?) that was highly publicized.  And when a new work or phrase goes viral, becoming part of our cultural lexicon, you can count on one thing:  someone is going to try and claim trademark rights to it.  The COVFEFE trademark was included in ten trademark applications the same day it was tweeted.  At the time I write this there are currently 32 COVFEFE trademark applications with the Trademark Office.  However, these types of applications are generally not successful.

Failure To Function As a Trademark

Let’s go way way back to our definition of a trademark for a moment.  A trademark is usually a word, phrase, logo, or symbol used in connection with the advertisement or sale of goods or services, and acts as an indicator of the source of those goods or services.  If a mark does not indicate the source, then it is not a trademark.

There are many times where a mark conveys a message more than it acts as a trademark.  In these cases, the Trademark Office will refuse federal registration.  Political slogans a frequently rejected for this reason.  The Trademark Office rejected the phrase DRIVE SAFELY for automobiles when Volvo tried to register it.  Whether a mark is registerable depends on how it is likely to be perceived.  Also, the more commonly-used the mark is, the less likely that it will be properly perceived as a trademark.  This is why choosing a trademark that has gone viral is not the best idea.

Other Examples

Obviously the COVFEFE trademark is not the first to get a lot of attention as a potential trademark after going viral.  Here are a few other examples with the number of trademark applications filed:

• NEVERTHELESS, SHE PERSISTED (7);
• BREXIT (3);
• NASTY WOMAN (20)

Obviously, these are a little easier to spot when they are political in nature.  Those types of words, quotes, or phrases tend to get a lot of play in the media.  However, like the DRIVE SAFELY example above, those are not the only type that may receive the “failure to function” refusal.

The COVFEFE Trademark Applications

What is likely to happen with these applications?  Well, they will probably all receive the “failure to function” rejection in an office action.  Once that happens, since most of these applicants filed their applications by themselves, they will probably let their applications go abandoned.  It is possible to make an argument against such a rejection.  However, that type of argument is not terribly likely to succeed.

Overall, what you should learn from this post is that it is always best to have a distinctive trademark.  While trendy words/phrases may become popular overnight, other people will try to capitalize on that popularity as well.  Even if the Trademark Office accepted your application, they would have to accept all of the others, so you would be starting from a place where you know others are using your name for all kinds of other products/services.  None of these are ideal from a trademark perspective.

Are You Re-Thinking Your Trademark After Choosing a Covfefe?

If you were thinking of using a social or political statement as your trademark, or even the COVFEFE trademark itself, please call me at (480) 360-3499, email me at kevin@yourtrademarkattorney.com, or complete the contact form found on this page to schedule your free initial consultation today.  I look forward to speaking with you.