The United States Patent and Trademark Office (USPTO) is seen in Alexandria, Virginia, U.S., September 1, 2020. REUTERS/Andrew Kelly

Court says phrase is used for expression, not commerce

US Trademark Office had rejected 2020 trademark application

Nov 13 (Reuters) – A U.S. appeals court on Monday said the phrase “Everybody vs. Racism,” cannot be granted a trademark because it is not used to identify the maker or seller of a specific product.

The U.S. Court of Appeals for the Federal Circuit agreed with the U.S. Patent and Trademark Office that consumers view the phrase “as a sentiment rather than a source,” citing its use to protest racism in the wake of the police killing of George Floyd in 2020.

Representatives for trademark applicant GO & Associates LLC and the USPTO did not immediately respond to requests for comment on the decision.

GO, a Nashville, Tennessee-based company that dissolved in 2021, applied in June 2020 to register the trademark to use on merchandise like tote bags and t-shirts. A trademark examiner rejected its application and said that registering GO’s trademark would “seriously impede the heartfelt need of citizens of the country to express that everybody should be against racism.”

A Trademark Office tribunal upheld the decision last year, finding the phrase had been widely used following Floyd’s death to “consistently convey an informational, anti-racist message to the public” instead of differentiating GO’s goods and services on the market.

The office cited the use of the phrase on other clothing, including shirts worn by National Basketball Association referees during a protest, and in the titles of songs, podcasts, YouTube videos and church sermons.

GO appealed to the Federal Circuit, comparing its mark to other phrases with “informational matter” that have received federal trademarks.

“If ‘Make America Great Again’ is capable of multiple federal registrations,” GO said in a court brief, “so is the mark ‘Everybody vs. Racism.'”

But the Federal Circuit said on Monday that the marks cited by GO, unlike “Everybody vs. Racism,” still identify their owners’ goods and services. For example, “Make America Great Again” identifies former U.S. President Donald Trump’s campaign as the source of products that feature the phrase.

U.S. Circuit Judge Alan Lourie also wrote that registering trademarks like “Everybody vs. Racism” would undermine trademark law “to the detriment of the public,” which 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.”