The famous expression “Everybody vs Racism” has been denied trademark registration in the US: the term refers to a sentiment and does not function as trademark

The famous expression “Everybody vs Racism” has been denied trademark registration in the US: the term refers to a sentiment and does not function as  trademark

In a ruling at the end of 2023, the United States Court of Appeals (USA) upheld the US Patent and Trademark Office’s (USPTO) decision to refuse registration of the “Everybody vs Racism” trademark. The court concluded that the slogan did not perform the function of an identifier of origin for goods and services.

The dispute arose after, in 2020, the company “Go” applied to register the phrase “Everybody vs Racism” for use on goods such as bags and T-shirts, as well as services related to raising awareness about racial equality. In the initial trial, the USPTO rejected the request on the grounds that most American consumers saw the phrase as a sentiment rather than an indication of origin, citing its use in protests against racism following the murder of George Floyd in the US.

On appeal, “Go” claimed that third-party uses of the trademark in speeches, songs, podcasts and the like did not render the phrase incapable of functioning as a trademark, arguing that it was “almost never used or searched for” before the company started using it in 2020.

In the decision, the judge clarified that political slogans and news stories can be protected as trademarks in the US, as long as the applicant demonstrates that they actually function as such. However, he argued that “if trademarks used by the public were allowed to be registered in such a way that they could not be attributed to a single origin, the purpose of the Lanham Act would be undermined to the detriment of the public, “who would be no longer free to express common sentiments without the threat of “paying a licensing fee to someone who sees an opportunity to co-opt a political message”.

Although the case took place in the US, there are points pertinent to trademark law in Brazil. The decision highlights the need for trademarks to perform the function of identifying their commercial origin, a principle in line with the Brazilian Industrial Property Law (art. 122). In addition, the IPL also prohibits merely informative trademarks, banning the registration of a sign or expression used solely as a means of advertising (art. 124, VII), advocating that the trademark identifies the origin in a distinctive manner.

The decision can be accessed via the link:https://cafc.uscourts.gov/opinions-orders/22-1961.OPINION.1-22-2024_2256749.pdf

Note: For quick release and cost control, this English version is provided by automated translation without human review.