iThe coronavirus epidemic has affected just about every industry in America, and the legal profession is no exception. In regard to intellectual property law specifically, people have been quick to line up to file trademark applications to protect various phrases, slogans, and words that relate to COVID-19.
Since March 2020, there have been over 1,000 trademark applications that have been filed with the U.S. Patent and Trademark Office (USPTO) that relate to the coronavirus,[1] including phrases such as “COVID Couture”, “Generation COVID”, and “I survived Coronavirus”.[2][3] Applicants have even tried to capitalize off of not just the name of the epidemic, but relevant associated phrases that have become part of public discourse this past year as well, including applications for slogans such as “Social Distancing Social Club”[4] and “Flatten the Curve”.[5]
What are the reasons behind this great surge in applications? First, like any worldwide issue, there is the obvious urge to capitalize off of a matter that is so globally recognizable and that millions of people readily identify with and understand. Second, many people who have taken pay cuts or have been furloughed are attempting to find ways to make supplemental income during a financially uncertain time. Third, the pandemic has left people, whether they are working from home or not, with more time on their hands than perhaps they have ever had in their lifetime.[6] Instead of workers’ days being filled with lengthy commutes, long hours at the office, and recreational activities, this year people have been finding themselves with more time to brainstorm over potential new business names and ideas.
Yet what are the chances of these applications of succeeding, and how will the landscape of trademark law look in the months to come? First, for any trademark application to succeed, there must be the identification of the source or origin of goods or services through the mark present. If someone is just trying to trademark the term “Coronavirus”, then it will likely not be approved because an average person will not get a sense of what type of apparel, activities, or products are being marketed through such a phrase.[7] Second, in order for an application to be approved, the owner of the mark must demonstrate that they will be using the trademark in commerce in association with the goods or services listed in the application.[8] Lastly, some applications that have been filed, such as “I Heart COVID-19”, have been labeled as inappropriate and in poor taste by some,[9] which would likely not help the applicants’ chances at getting such marks approved. Applicants who want to see success would be apt to consider the emotional aspects and optics of trying to protect a mark that is related to a worldwide pandemic.
Most practitioners and attorneys generally still advise against trying to trademark phrases and slogans related to the coronavirus, primarily because it is still seen as bad taste to capitalize off of a disease that has caused so much distress and also due to the difficulty in demonstrating intent to use the mark in commerce.[10] Despite this, as the pandemic continues to increase in rates in states such as Florida and Texas,[11] there will surely be more trademark applications that relate to COVID-19, and it is also likely that examiners will continue to use strict guidelines when determining whether they will approve of such marks or not.
