• July 10, 2020
  • Brent Sausser
  • 0

Coronavirus Trademark or COVID-19 Trademarks

With a pandemic upon us, and no end it sight, bright-minded people are looking to take advantage of any brand association with CORONAVIRUS or COVID-19. We’ll explain what you can and cannot trademark in the information below.
COVID-19 Trademark

Can I Trademark CORONAVIRUS or COVID-19?

No. You can’t trademark CORONAVIRUS or COVID-19 as individual terms as they simply convey an informational message. Phrases such as BOSTON STRONG, are not capable of trademark protection. It merely conveys an informational social, political, religious, or similar kind of message; it does not function as a trademark or service mark to indicate the source of goods and/or services and to identify and distinguish them from others. The more commonly a term or slogan is used in everyday speech, the less likely the public will use it to identify only one source and the less likely the term or slogan will be recognized by purchasers as a trademark or service mark. The reason for this is because it will be difficult for the consuming public to differentiate your product with the name because of the ties to the current pandemic. Trademark Act Sections 1, 2, 3, and 45, 15 U.S.C. §§1051-1053, 1127; see In re Hulting, 107 USPQ2d 1175, 1177 (TTAB 2013) (holding NO MORE RINOS!, a slogan meaning “No More Republicans In Name Only,” not registrable for a variety of paper items, shirts, and novelty buttons because the mark would be perceived as a commonly used political slogan and not a trademark); In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229-31 (TTAB 2010) (holding ONCE A MARINE, ALWAYS A MARINE not registrable for clothing items because the mark would be perceived as an old and familiar Marine expression and not a trademark); In re Volvo Cars of N. Am., Inc., 46 USPQ2d 1455, 1460-61 (TTAB 1998) (holding DRIVE SAFELY not registrable for automobiles and automobile parts because the mark would be perceived as a familiar safety admonition and not a trademark); TMEP §1202.04. 

  • If you apply for CORONAVIRUS or COVID-19 trademark it will get rejected based on being an informational message incapable of secondary meaning (consumer recognition).

Can I Trademark CORONAVIRUS or COVID-19 With Other Terms?

Yes.

The USPTO will simply require a disclaimer of the terms that are informational. Disclaimers are required for any descriptive or generic terms. A disclaimer is a statement that the applicant does not claim exclusive rights to an unregistrable component of a mark.

  • If you include CORONAVIRUS or COVID-19 in your trademark, the USPTO will simply request you disclaim that portion of your mark. For example XYZ CORONAVIRUS for a website where you sell face-masks should get approved as long as you add the disclaimer for CORONAVIRUS.

Can I Trademark CORONAVIRUS or COVID-19 as Images on Shirts?

Maybe.

You will want to avoid ornamental use. Often you’ll see a large design on the front of a shirt used as a decorative feature. For example, “I’m with Stupid” a smiley face or a statement, “I Love Einstein.” This constitutes ornamental use not trademark use. “Matter that is purely ornamental or decorative does not function as a trademark and is unregistrable.” Trademark Manual of Examining Procedure.

  • If you include CORONAVIRUS or COVID-19 as a design on the fornt of the shirt make sure you have other elements of trademark use (attached label/price tag/header on your website that includes the logo or design).