A trademark is a word, phrase, symbol, design, or combination that helps consumers identify a particular product or service. Trademark rights allow companies to stop other people from using their intellectual property to sell confusingly similar goods or services. Those rights also protect consumers because they can know the source of goods or services they’re buying. At the same time, a registered trademark doesn’t give its owner the right to stop all others from using that trademark but only to stop those third-party uses of that trademark in connection to the goods and services specified in the application.
Because the function of a trademark is to identify a single commercial source for particular goods or services, if consumers are accustomed to seeing a term or phrase used in connection with goods or services from many different sources, it is likely that consumers would not view the matter as a source indicator. According to the Trademark Manual of Examining Procedure (TMEP) §1202.04. (b), trademarks that merely convey ordinary, familiar, or generally understood concepts or sentiments, as well as “social, political, religious, or similar informational messages in common use”, fail to function as a trademark and are thus not registrable. If consumers see your desired trademark used in everyday speech by a multitude of providers, such as protestors on the streets or public speakers on social media, they are unlikely to perceive the slogan as a trademark indicating a good’s origin.
Despite the fact that such trademarks do not clearly indicate the source of goods and services, multiple entities, both formally associated with relevant social movements and the ones that are simply trying to benefit from them, have filed numerous trademark applications.
Black Lives Matter
Black Lives Matter movement began in July 2013, with the use of the hashtag #BlackLivesMatter on social media after the acquittal of George Zimmerman in the shooting death of African-American teen Trayvon Martin 17 months earlier in February 2012. Black Lives Matter Foundation, Inc is a global organization in the US, UK, and Canada, whose mission is to eradicate white supremacy and build local power to intervene in violence inflicted on Black communities by the state.
Unsurprisingly, like any globally-recognised term, multiple individuals and entities have filed trademark applications related to Black Lives Matter. In 2018, the USPTO rejected six applications containing the phrase “Black Lives Matter” that were filed by the originators of the movement. The decision was based on three aspects:
The USPTO determined that the “Black Lives Matter” is a term that does not function as a trademark or indicate the source of applicant’s goods and/or services to identify and distinguish them from others.
Second, it affirmed that the phrase identifies an informational, social, political, religious, or similar kind of message that merely conveys support of, admiration for, or affiliation with the ideals conveyed by the message.
Third, the public would likely perceive the phrase not as source-identifying matter that identifies applicant alone as the source of the goods/services, but rather as an expression of support for anti-violence advocates and civil rights groups because potential consumers would simply access the publications and enlist or engage in applicant’s services because they want to support the cause that the slogan represents.
Ultimately, the USPTO determined that “Black Lives Matter” belongs to the movement, not to an individual person or entity. No single individual or entity may exclude others from using these words. Any organization or individual may use “Black Lives Matter.” In other words, the phrase is available to everyone. Accordingly, the “Black Lives Matter” trademark exists in the public domain and cannot be used exclusively to sell goods and services by a single organization.
Tarana Burke, an advocate for women in New York, coined the #MeToo phrase in 2006. Her goal was to empower women who had endured sexual violence by letting them know that they were not alone—that other women had suffered the same experience. In 2017, the New York Times published an article accusing Harvey Weinstein of sexual harassment. Shortly, other public figures such as Ashley Judd and Rose McGowan released statements regarding Weinstein's actions, which motivated others to their stories. Twitter users posted the hashtag almost a million times within two days, according to Twitter. The movement spilled over to Facebook, too, where about 4.7 million users shared 12 million posts in fewer than 24 hours. Years later, people continue to share their stories with the hashtag #MeToo across social media platforms.
Several companies have tried to file trademarks on #MeToo and related phrases. In January 2018, cosmetics company Hard Candy, which sells makeup and accessories exclusively through Walmart, applied for a trademark to register #METOO as a brand. Overnight, the company was flooded with criticism, with many on social media accusing the company of attempting to capitalize on the social movement to speak out against the widespread prevalence of sexual assault and harassment. Realizing the extent of the damage, the cosmetics line withdrew its application. Public reactions to Hard Candy’s trademark application should serve as an example for companies who wish to secure trademarks for terms associated with social movements. Not only is it likely to be unsuccessful, but it could seriously harm the company’s reputation.
BLM, MeToo and similar movements are often about deeply human and personal stories, something outside of the scope that brands can simply commodify. While a company can support the underlying cause the movement stands for, through available means such as donations or public statements, they need to ensure that support is relevant and aligned with both their public and private efforts as an organization.