Popular phrases may not be claimed as intellectual property

It is not unheard of for people to file for trademark registration for clever phrases. "Just Do It," for example, is a popular saying New York consumers are happy to wear on their shirts, bags and other merchandise. Nike, Inc. is the owner of the trademark for the saying and thus has the right to use it in marketing to promote its products. However, there are some cases in which the claim for trademark protection is not covered by intellectual property law.

When a new phrase gains popularity, there is often a rush to claim the trademark rights. Dozens of people may file for exclusive rights to use the saying to make a profit. Most often, these efforts fail on several grounds. For example, the U.S. Patent and Trademark Office may determine that the trademark doesn't help the public identify a brand but is only a description of the brand.

Previously, a trademark filing may have been rejected because the phrase was immoral or scandalous. Recently, however, appeals have brought about a change in that rule. Now people are rushing to trademark so-called obscenities, including 97 applications pending to trademark sayings including the F word. Others try to capitalize on sayings that emerge from tragedies, such as "Boston Strong" from the bombing at the Boston Marathon and "Let's Roll" from 9/11.

Obtaining trademark protection for a phrase or saying is difficult. Whether one claims protection for an existing phrase or creates one with the hope that it will gain posterity, filing for a trademark is the best way to protect one's intellectual property. A New York attorney can provide assistance and answer any questions concerning the process of trademarking a brand.

Source: richmond.com, "Leading-Edge Law: Don't claim popular phrases as trademarks, and be careful using them in advertising", John Farmer, Jan. 1, 2018

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