It is undoubtedly the case that Covid-19 has caused entrepreneurs and established businesses alike to rethink financial models and orient new business practices around the emerging reality of the ‘empty store-front’. Indeed, the broad closure of physical restaurants, bars, and shops coupled with the mandate to socially distance has all but moved any remaining forms of commerce to the digital market. Companies that are not adapting are dying.
Perhaps one of the more interesting and arguably cynical manifestations of this ‘adapt or die’ philosophy is the rising trend among entrepreneurs to seek protection from the United States Patent and Trademark Office (USPTO) on Covid-19/Coronavirus based-trademarks. What do these trademarks actually entail? Will they procure registration? Are they in bad taste?
This article will consider all of these issues
What is a Trademark?
If you live in the modern world, Trademarks are quite literally, all around you. They are inescapable. The moment you open our eyes in the morning and see the Samsung logo attached the flat-screen TV mounted to the wall of your bedroom, you are observing, a Trademark. What is a trademark? It may be a name, logo, or slogan that when used in conjunction with the sale of a good or service, identifies to the consumer the producer of that good or service.
The Samsung Corporation has done a remarkably good job establishing their brand in the domain of technology. Assume for the moment that you really do have a flat-screen TV in your bedroom with the Samsung logo – why did you really buy it? Consumers like to believe that they are firmly in control of their purchasing decisions but the reality is that the decision to buy or not to buy is happening on a much deeper and yet simultaneously simpler level of analysis than what we would otherwise expect from the purchase of a large and expensive item.
More likely than not, you did not buy this expensive television because of a rigorous analysis of the underlying technology and its tested superiority. You bought it because you believe in the quality of the Samsung brand – this belief is the essence and ultimate purpose of obtaining a trademark.
Trademarks Are Principled
Trademarks can therefore be boiled down to having two components; the mark itself (the name Samsung) and the products sold under the banner of the mark (the TV). If the name Samsung was not actually used in conjunction with the sale of anything, it would just be a clever name – not a trademark with proprietary rights to prevent others from using it in conjunction with the sale of specific goods (TV’s etc.).
The most important thing to understand about trademarks is that they are designed to protect the exclusive right of a company/individual to sell something under the banner of that trademark. Thus, trademarks are created when two separate events coincide; the development of a novel and distinct name/logo/slogan and the use of that name/logo/slogan in conjunction with the sale of goods/services across inter-state commerce. If both of these criteria have not been satisfactorily met, the USPTO will issue a Trademark Office Action, which states the defects in the trademark application and what if anything, can be done to cure the defects. Ultimately, if/when the United States Patent and Trademark Office (USPTO) “confirms” after a tedious application process that these criteria have been met, the trademark applicant is conferred the exclusive right to use the trademark in concert with the designated goods/services.
The Rise of the Covid-19 Trademark
It should come as no surprise that entrepreneurs have identified what is perceived to be an emerging opportunity, namely, capturing the energy and focus surrounding Covid-19 and monetizing it. How? By developing products and subsequently branding those products with Coronavirus/Covid-19 based names and slogans. Indeed, since the Covid-19 outbreak, roughly 600 trademarks have been filed which are anchored by common words/phrases associated with the virus.
Here are a couple important ones to note:
- CORONA KID
Remember, the trademark proposition is a two-part test; it must be both distinct and related to the sale of a good/service. What sorts of goods/services are sold under the banner of these marks? Well, they run the gamut from Apparel (clothing, shoes, socks etc.) to more creative services like “Providing information in the field of medicine; promotional services, namely, promoting the charities of others” which an Applicant from California assigned to the trademark, WE CURED COVID-19. Another trademark, CLUB QUARANTINE, was filed for the services “Dance club services; Entertainment services, namely, conducting parties; Entertainment services, namely, providing virtual environments in which users can interact for recreational, leisure or entertainment purposes”.
So, what’s really going on here? What is the ultimate purpose of these trademarks? Well, all of these trademarks represent the shared-belief of their owners that that they can make money from exploiting the energy/fear/momentum of Covid-19. Selling goods/services under Corona Virus-themed trademark will supposedly create a compelling reason for consumers to purchase associated products and services.
Are Corona/Covid-19 Trademarks Obtainable? Enforceable?
The extent to which these trademarks will be accepted by the USPTO is unclear and largely dependent on the distinctiveness and novelty of the given mark. For example, #CORONAVIRUS will undoubtedly face difficulties; CORONANOMICS, conversely, is of course far more unique and idiosyncratic and thus will likely fare much better.
Are these Trademarks in Bad Taste?
This is not a legal question in as much as it may be considered an ethical quandary but as a trademark attorney, I personally feel that trademarks are inherently ethics-neutral. They are neither good nor bad. While I understand the concern that there is at least something superficially cynical about profiting off of the nightmare that is Covid-19, I also tend to sympathize with those who are attempting to make lemonade from lemons and turn an otherwise devastating situation into something more tolerable. What do you think?
Abe Cohn is a Partner at Cohn Legal, PLLC, a law firm specializing in intellectual property and corporate transactional law.