No, Seriously, Don’t Try To ‘Trademark’ Coronavirus

From Law360:

A rush of misguided trademark applications for “COVID” and “coronavirus” has already begun, replaying a bizarre legal phenomenon in particularly tasteless fashion.

Trending terms from news and pop culture are routinely followed by a flood of applications at the U.S. Patent and Trademark Office, filed by opportunistic applicants who think they can lock down exclusive rights on something that’s captured the national conversation.

Only this time, it’s not a viral presidential typo or a Super Bowl moment — it’s an ongoing pandemic that threatens millions and has ground daily life to a halt around the globe.

“This isn’t about lightweight entertainment,” said Julia A. Matheson, a trademark attorney at Hogan Lovells. “It’s about people’s lives.”

As of Wednesday, more than a dozen applications have been filed at the USPTO seeking to register trademarks involving “COVID” or “coronavirus.”

. . . .

For trademark lawyers, the pattern is predictable.

Back in 2017, when President Donald Trump accidentally tweeted the word “Covfefe,” it was followed by 42 separate attempts to register it as a trademark. After the Philadelphia Eagles ran the famous “Philly Special” trick play in Super Bowl LII, 10 such applications were filed.

Just three days after the Boston Marathon bombing in April 2013, four applications had already been filed to register “Boston Strong” — the rallying cry for the city in the wake of the attack. Eventually, seven more were filed.

“Depending upon how you look at it, it reflects the best and worst of the capitalist ethos and desire to get rich quick from widespread trending events,” Matheson said.

It also reflects a deep misunderstanding of how trademark law works.

For starters, U.S. trademark law doesn’t simply reward whoever is quickest to file a piece of paper with the government. Applicants must show that they have a bona fide intent to use the term on a particular set of goods and services — something most “coronavirus” applicants are unlikely to do.

“It’s a get rich quick scheme, but like most of these schemes, they fail,” said Eric Ball, a trademark attorney at Fenwick & West LLP. “Trademark law doesn’t support the warehousing of marks. You have to actually use the marks to get rights.”

One other small problem: Terms like “COVID” are, for the most part, incapable of functioning as trademarks in the first place, made so by the very attribute that attracted the applicants.

By its nature, a trending term has been widely used by countless third parties. How, then, can it somehow uniquely identify an applicant as a source of goods?

Link to the rest at Law360

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