What happens when someone tries to trademark a viral phrase? Is it possible to protect such a widely recognized expression under trademark law?
The Rise of Viral Phrases
Viral phrases can emerge from various sources—an influencer’s catchy tagline, a memorable meme, or even an off-the-cuff comment that resonates with the masses. These phrases can quickly gain popularity, becoming synonymous with certain trends, movements, or brands. For businesses, the appeal of trademarking a viral phrase is clear: it offers a way to capitalize on the phrase’s popularity and potentially gain exclusive rights to use it in connection with specific goods or services.
Trademarking Viral Phrases: The Challenges
While the idea of trademarking a viral phrase may seem straightforward, the reality is much more complex. The U.S. Patent and Trademark Office (USPTO) has specific criteria that must be met for a phrase to be eligible for trademark protection. One of the key requirements is that the phrase must function as a source identifier, meaning it must clearly distinguish the applicant’s goods or services from those of others.
However, when a phrase becomes viral, it often loses its distinctiveness. Instead of being associated with a particular brand or source, the phrase may be seen as a common expression used by many. This widespread use can pose significant challenges for those seeking to trademark the phrase.
The “Common Expression” Hurdle
A common reason for the USPTO to refuse a trademark application is if the phrase is deemed a “common expression” or a widely-used slogan that does not function as a trademark. This is particularly relevant for viral phrases, which, by their very nature, are adopted and repeated by large numbers of people.
When a phrase becomes ingrained in popular culture, it may be considered merely informational or decorative rather than a unique identifier of a single source. As a result, the USPTO may determine that the phrase fails to function as a trademark, leading to the refusal of the application.
Case in Point: Trademarking a Viral Phrase
Consider a scenario where an influencer coins a catchy phrase that goes viral on social media. Seeing the phrase’s popularity, another individual decides to file a trademark application for it, hoping to use it for marketing services. Despite the phrase’s widespread recognition, the trademark application is likely to face scrutiny from the USPTO.
The key issue is whether the phrase has become so common that it no longer functions as a source identifier. If the USPTO determines that the phrase is now a common expression, the application is likely to be refused on the grounds that it does not meet the distinctiveness requirement. Schedule a consultation with The Law Firm of Andrea Hence Evans, LLC to discuss your trademark options. www.evansiplaw.com