One of the many ramifications of social media has been the rise in various forms of online activism. We typically encounter this online activism in the form of a phrase or slogan used as a message to create awareness, share information and organize action around a particular cause or issue. In the past few years, the number of trademark applications for phrases created from political and social justice movements has drastically increased. #MeToo, Black Lives Matter, Justice for Trayvon, and September 11, are textbook examples of the kind of social and informational messages that many have tried to register as trademarks.
The purpose of a trademark is to serve as a source identifier for consumers, allowing them to identify and distinguish a particular source of goods and services. Thus, if a proposed trademark is merely an informational, social, or political message, it fails to function as a trademark. The USPTO has not been receptive to the branding of social justice movements. While it has not been explicitly stated, the USPTO may be reluctant to grant registrations of this sort for fear that disinterested parties may try to capitalize on every social justice movement in the future. Accordingly, many of the applications stemming from these movements are unsuccessful and abandoned post filing once they receive office actions from the USPTO.
A specific example of social movement branding can be found by analyzing the trademark applications stemming from the 2012 Trayvon Martin killing. At least nine trademark applications were filed surrounding the death of Trayvon Martin, yet only two were successful.
Trayvon Martin’s mother, Sybrina Fulton, filed two trademark applications, “I Am Trayvon” and “Justice for Trayvon”, immediately following the killing of her son. Both phrases were rallying cries created during the community protests demanding the arrest of his killer, George Zimmerman. Not only where these phrases used on signs, many protesters began selling apparel and other consumer goods with the same phrases. Fulton received mixed feedback based on her actions. Cynics suspected opportunism and proffered that the commodification depleted the message, while others felt that Fulton was well within her right to take pre-emptive measures to prevent others from profiting or exploiting Trayvon’s name.
Many outside parties, attempted to profit from Trayvon Martin’s name, submitting trademark applications such as, “#peacefortrayvon”, “Justice for Trayvon”, and “Justicefortrayvon.net”. Many of these applications were sent refusals under Trademark Act Section 2(d) and Section 2(a), respectively. The primary concern with allowing the branding of social justice movements, as seen here, is the consumer’s likelihood of confusion. A consumer would likely believe that products stemming from the aforementioned marks were associated with Martin’s family; however, that is not the case. Moreover, granting these marks would support a false connection between the products and Trayvon Martin.
Defensive registrations, such as Fulton’s pre-emptive action to prevent profiteering from outside parties, often backfire because they do not meet the trademark requirements. Although used as an effort in weeding out those using Martin’s name in bad faith, defensive registrations are often not practicable because they are not intended to be used in commerce. Martin’s family ran into this issue multiple times when the USPTO required an acceptable identification of services and sent an office action for title of a single work. As such, the two trademarks that were successful did not happen overnight.
Ultimately, the only two trademark applications stemming from the Trayvon Martin killing that have been successful are “I Am Trayvon” and “The Trayvon Martin Foundation”. It took over two years and multiple efforts to successfully register the mark “I Am Trayvon”. Similarly, it took over four years to successfully register the mark “The Trayvon Martin Foundation”. The length of time, among other factors, it took Martin’s family to successfully register marks stemming from his death speak to the reluctance of the USPTO to grant trademarks stemming from social justice and political movements. Due to the continued growth and pervasiveness of social media activism, I do not foresee the USPTO changing their stance in the near future.