COVID-19 and trademarks
Updated: Feb 17
Yesterday, I posted about businesses finding creative ways to remain viable during the global pandemic known as coronavirus or COVID-19. Several enterprising individuals have already filed applications for trademark registration with the U.S. Patent and Trademark Office, attempting to secure the exclusive right to use phrases including “Coronavirus” or COVID-19.
U.S. Patent and Trademark Office Application Serial Number
I HEART COVID-19
apparel and buttons
I BEAT THE CORONAVIRUS
I SURVIVED CORONAVIRUS
I SURVIVED CORONAVIRUS
CORONAVIRUS SURVIVAL GUIDE
magazines about survival, protection, medicine and pandemics
respirators and thermometers
My take: those using the term in connection with apparel will most likely get rejected as “ornamental.” The others will likely be rejected as descriptive, except maybe the last two. Why, you ask? Well, a lot of people try to "trademark" catchy phrases printed on T-shirts. However, a trademark registration for apparel is really intended for a company that sells a line of apparel under a particular word or design - not for a single T-shirt design, which would be more appropriately protected by a copyright registration.
Trademark Manual of Examining Procedure §1202.03 advises that the U.S. Patent and Trademark Office ("USPTO") should refuse registration of certain applications on the basis that they are “merely a decorative feature” and do not identify and distinguish the applicant’s goods and, thus, do not function as a trademark. The USPTO provides an example of such an application: a quote prominently displayed across the front of a t-shirt, such as “The Pen is Mightier than the Sword.” Most purchasers would perceive the quote as a decoration, and would not think that it identifies the manufacturer of the t-shirts (the source of the t-shirts could be Hanes® or Champion®, for example, as shown by the neck-tag). The Trademark office always requires that applicants submit a "specimen of use" for the subject goods/services, and for apparel, the best specimen is a hangtag showing the mark, attached to the apparel, or a label within the apparel that shows the mark -- NOT a single T-shirt printed with the design.
As for the COVID-19 VAX -- well, the USPTO also does not like to give the exclusive right to use a mark to an applicant when that mark is "merely descriptive" of the goods and services. If there's a vaccine to prevent coronavirus (which G-d willing there will be in the near future), COVID-19 VAX would simply describe that vaccine, and thus be incapable of protection from the Patent and Trademark Office. Ditto with a survival guide going under the descriptive term "CORONAVIRUS SURVIVAL GUIDE." Too bad these applicants didn't reach out to us before filing their applications; we could have saved them time and money!
Cover Photo by Vladimir Fedotov on Unsplash