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Crackpots Apply for Coronavirus Trademarks

John Gilberston \ March 23, 2020

“Covfefe.”  “Philly Special.”  “Boston Strong.” “Covid Kids?”  

In a world gone sideways, it’s oddly comforting that at least one thing hasn’t changed: trademark opportunists trying to cash in on pop culture buzzwords, and the trademark office shutting them down.  Following the traditional playbook, people trying to capitalize on the worldwide COVID-19 phenomenon are flooding the trademark office with applications in an attempt to lock down catchphrases such as “I HEART COVID-19,” “FXCK CORONAVIRUS,” or CORONAVIRUS TAX AMNESTY PROGRAM.”  

Tackiness aside, the trend also reflects a deep misunderstanding of what trademarks actually are, and how they work.  Trademarks are source-identifiers, employed by brands to tell you where your stuff comes from. This protects consumers, who can have confidence that the six-pack of Coca-Cola® they’re buying is the real deal.  This reduces search costs and promotes competition. It also protects brands by rewarding them with limited monopolies for the names and symbols under which they do business, thereby incentivizing them to maintain a high degree of quality.  

The more distinctive a mark is–– Nike or Starbucks, for example––the better it will serve a source-identifying function, and the more legal protection trademark law will bestow on it. 

On the other end of the spectrum are generic words and phrases that cannot function as source identifiers because they are simply too common, and too necessary to the description of a product or service.  For example, a furniture manufacturer can’t call its brand “TABLE,” because not only would that prevent others from using the word to describe their products (and thus hindering competition), but it’s also a common, ubiquitous word that, by definition, identifies a thing, rather than the particular source of the thing.

With “Coronavirus” or “COVID-19” as perhaps the most ubiquitous words on the planet right now, it has about zero chance of identifying any particular source.  The trademark office isn’t fooled, so don’t expect to see Coronavirus Survivor® anytime soon.

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