In 2015, the United States Patent and Trademark Office (USPTO) rejected an application
to grant a trademark to “Black Lives Matter” for use on t-shirts and similar articles of clothing. The refusal by the USPTO was based on the fact that the term had become so widely-used, it could not be associated with any one thing. Other attempts in 2015 and 2016 to register the phrase in connection with clothing and greeting cards were also rejected or abandoned.
The May 2020 murder of George Floyd sparked a new wave of #blacklivesmatter activism and discussion. It also prompted a surge of filing for trademarks with reference to the phrase. The proposed trademarks ranged from “Black Lives Matter Academy” to “Black Lives Matter Moscato.” These filings have or will mostly likely be met with the same fate as the previous round, abandoned or rejected.
Social media thrives on phrases that capture a moment or a mood. “Black Lives Matter” is just one of many phrases that have resonated. Other examples include “Boston Strong,” “Occupy Wall Street,” and “MeToo.” These well-turned phrases also launch movements and transform societies. Various people, recognizing the value such phrases might have when used in conjunction with goods and services, have attempted to profit from these rallying cries by registering them as trademarks. The attempts to register “Boston Strong,” “Occupy Wall Street,” and “MeToo” did not meet with success for the same reason “Black Lives Matter” was rejected—too ubiquitous to be associated with any one thing or company.
In response to the growing interest in obtaining trademark protection for social media phrases, the USPTO issued Examination Guide 2-17 on Merely Informational Matter in July 2017. The Guideline was written for the Trademark Examining Attorneys in the USPTO. It presents case law on the issue of determining when a word or phrase is considered informational only and when it functions as a source identifier for a particular good or service.
Questions often arise as to why some slogans such as former President Donald Trump’s “Make America Great Again” or a fundraising one, “for the Cure” owned by Susan G. Komen, an organization dedicated to eradicating breast cancer, are registered trademarks. There is also scholarship examining how intellectual property protections might address cultural appropriation. Others have argued that trademark law needs to be adapted to protect social movement slogans. New protections posited include supplemental registration or a provision hashtag mark.
This paper reviews trademark protection as it relates to the well-turned phrases of social movements. Does trademark law today help or hinder the transformative rallying cries of social movements? What other, if any, intellectual protections are needed to achieve a fair, just and equitable society? This paper explores these issues and concludes that proper application of current law is sufficient.
