Every notable movement needs a good name – a memorable moniker. Some movement names are purely descriptive, like CIVIL RIGHTS MOVEMENT or GAY RIGHTS MOVEMENT, while others are less so such as TEA PARTY MOVEMENT or BOSTON STRONG. Can the name of a movement also constitute a brand that is protectable under our U.S. trademark laws?
A trademark is anything (a word, symbol, phrase, etc.) that identifies the goods or services of one party and distinguishes them from those of others, thereby acting as a source indicator for those goods or services. Some well-known examples are NETFLIX, CHRYSLER, JACK DANIEL’S, TRUMP (fact check/look it up; registered trademark; not a lie), PEPSI and APPLE.
We tend to view trademarks through our client’s perspective: “I own a brand so it’s my property. I can sell it or license it. I can stop others from using it. It’s mine! All mine!” (here, our client is the trademark owner). While our U.S. trademark laws do acknowledge and facilitate these concepts of brand ownership and control, they were not entirely crafted with the interests of trademark owners in mind. One fundamental purpose behind our trademark laws is to protect a different constituency – the consuming public.
A commonly-noted function attributed to our traditional trademark protection laws is to protect the consumer from being confused or deceived as to the source, sponsorship, or affiliation of a particular good or service. Under the “likelihood of confusion” test for evaluating two conflicting brands, there are limitations on trademark protection based on aspects of the consumer’s perceptions. For instance, trademark ownership doesn’t give a mark owner the right to stop all others from using that mark, but only to stop those third party uses of that mark that are likely to cause consumer confusion. That’s why two (or more) parties can own the same mark, such as DOVE for soap and DOVE for chocolates – because reasonable consumers would not expect those similarly-branded products to come from the same source. Of course, supersaturated house brands like KIRKLAND (used by Costco for everything from car batteries to pet food to appliances to pharmaceuticals to paper towels to bacon to underwear to whiskey) can undercut such distinctions (but that’s a trademark topic for a different day).
A secondary advantage and function of trademark law and trademark protection policy is to improve the quality of information in the marketplace. Purchasers use trademarks as shorthand tools when buying goods or services. By relying on trademarks, a consumer reduces the costs of shopping and time needed for making purchasing decisions. A known trademark provides a consumer the assurance that a product bearing that mark is made by the same producer as other similarly marked products that the consumer liked (or disliked) in the past. The trademark thus serves as an indicator of both quality and source to the prospective purchaser.
Doesn’t the same thing happen with respect to movement names? Don’t we rely on them as shorthand identifiers to associate (or disassociate) ourselves with a particular movement and as such, aren’t they then acting as trademarks? Yes, we do – but that doesn’t turn those names into trademarks, especially when that movement is a grassroots movement with a decentralized organizational structure (if there is any structure at all). Examples of such movements are BLACK LIVES MATTER and METOO.
These two movement names are especially interesting (for many great reasons, but we’re speaking here in the nerdy context of today’s discussion about trademarks) because so many different parties have tried to obtain federal registration for marks based on these terms, and have been turned away by the U.S. Patent and Trademark Office. We are aware of 10 different parties being denied federal registration for METOO-based marks and of 18 different parties being denied federal registration for BLACK LIVES MATTER-based marks.
A principal basis for those rejections is that those terms do not function as trademarks (or service marks, as the case may be). Remember, a trademark must act as a source indicator for a particular good or service. When it comes to decentralized movement names like BLACK LIVES MATTER or METOO, they each fail to fulfill that important source indicator role, and thus do not attain the status of being protectable in a traditional trademark sense. In rejecting applications to register such terms, the U.S. Patent and Trademark Office has noted that each term merely conveys an informational social or political message, citing numerous news articles and web sources to show that the movement name is a commonly used message emanating from many sources and to support the conclusion that the consumer perception of that term is not as source-identifying matter that identifies the trademark applicant as the source of the involved good or services.
A lack of trademark recognition for a movement name does not, of course, lessen the importance of the movement itself.