by Paris Henderson
According to a Bloomberg Business News article in late June 2020, applications to trademark the slogans “Black Lives Matter” and “I Can’t Breathe” have surged amidst nationwide (global) protests to end the mistreatment of black and brown people at the hands of police officers. The article goes on to state that within a three-year span from 2014 to 2017 United States Patent and Trademark Office (“USPTO”) only received nineteen requests to trademark, marks including the words “Black Lives Matter”. This new surge in mark applications had marks for use in everything from educational services, “Black Lives Matter Academy” to wine, “Black Lives Matter Moscato”.
No applications in the United States of America for the slogan have been successful and many experts think this new onslaught of applications will too be unsuccessful. Should people be able to protect (trademark) a slogan that means so much, culturally and politically, to so many people? As far as the USPTO is concerned no they generally should not because “[t]erms and phrases that merely convey an informational message are not registrable.” Amanda Vinicky, ‘Black Lives Matter’ Wine? Teddy Bears? Trademark Law Shows You Can’t Always ‘Just Do It’, Window to the World News (Jun. 29, 2020), https://news.wttw.com/2020/06/29/black-lives-matter-trademark-applications.
A general word search of the Trademark Electronic System (“Tess”) returned thirty-six records of which twenty-one were live, which means the filing is still active and any new filings are subject to the “likelihood of confusion” test and refusal based on current application filings. Although, these applications will not likely be successful it remains disheartening that people want to capitalize off of a slogan rooted in so much pain. But then we must consider people like Stacey Stokes a black woman who three years ago in 2017, decided to create her own wine company, called Strange Fruit in homage to a Billie Holiday song of the same name that chronicled the prevalent practice of lynching of her time. Michael Tobin, ‘Black Lives Matter’ Trademark Applications Surge After Protests, Bloomberg Business News (Jun. 24, 2020), https://www.bloomberg.com/news/articles/2020-06-24/-black-lives-matter-trademark-applications-surge-after-protests. Stacey created her wine brand after seeing an advertisement on Facebook for White Girl Rosé. Id. She filed a trademark application for “#BlackLivesMatter Moscato” and “#SayHerName Sweet Red” in an effort to use wine as a protest. Id. Stacey is a part of the community represented by the slogan, after all her black life is undoubtedly included in the movement. Id. She says that some proceeds of these sales will go to the organizations fighting the police brutality that spurred the Black Lives Matter movement. Id. She has already begun printing the labels associated with the wines although it is unlikely that she will gain protection for the marks. Id.
A slippery slope is created when allowing slogans like “Black Lives Matter” to gain trademark protection because these phrases do not necessarily belong to a group or person but instead it belongs to a movement and that movement can encompass anything from apparel to educational services even wine – whatever the impacted group decides to use as their means of protest. It also may allow nefarious actors to capitalize off of the movement.