Pandemic prompts plenty of new trademark requests

But attorney says most will be rejected due to commonplace usage, not brand strength.
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Kevin McLauglin, founder of Grand Rapids-based IP firm Crafted Law, said trademarks often are more directed toward names, logos, phrases, slogans, sounds or colors. Courtesy Laura House, House Photography

Although the coronavirus has wreaked havoc on the U.S. economy, some people are looking to capitalize on it.

As of May 21, there have been 785 trademark applications submitted to the United States Patent and Trademark Office (USPTO) related to the virus since the pandemic started, per Gerben Law Firm LLC.

Some of the coronavirus-related trademark filings made with the USPTO are: Corona Baby; I am a COVID-19 Survivor; Quarant If You Can Read This; You Are Too Close; COVID-19 American Heroes; United We Stand Apart; Class of ’20 > COVID-19; Shelter In Paradise; and Bye Bye Corona, among others.

Most of these trademark submissions will not be registered because they are commonplace terms, according to legal experts.

Kevin McLauglin, intellectual property attorney and founder of Grand Rapids-based Crafted Law, said a name, logo, phrase, slogan, sound or color name can be trademarked. 

Most terms on T-shirts, however, cannot.

“Terms like ‘Happy Camper,’ for example. That is big and is designed on the shirt but is normally not considered trademark use because it is what they call ornamental,” he said. “What counts on clothing, in terms of trademarks, is actually what is on the tag or on the label. So, on the inside label, if it says Nike or Under Armour or whatever the name of the company is, that shows where it is from. That is what trademarks are all about — a source identification, where is it coming from. The stuff that is on the front of the shirt doesn’t normally count, unless it is like the little, tiny Polo Ralph Lauren logo, for example, that is on the front or on the sleeve of the shirt. That normally would qualify, but if it was like a giant polo man on the front of the T-shirt, that probably would not.”

While most of the coronavirus-related terms might be rejected, McLauglin said since many companies are doing a lot of virtual things, if they are starting to offer different virtual services and they are using a particular name, brand or logo to promote that service, then there could be new filings.

At the foundation of every brand such as Apple, Google, Amazon or Disney, McLauglin said, are trademarks. It legally protects a brand. Once a name, logo or sound is trademarked, a brand is developed based on the services the company has to offer and later marketed and advertised.

According to the 2020 Edelman Trust Barometer Brands and the Coronavirus Pandemic special report, 12,000 respondents completed an online survey in 12 countries: Brazil, Canada, China, France, Germany, India, Italy, Japan, South Africa, South Korea, the United Kingdom and the United States. There were 1,000 submissions per market.

The results show that 81% of respondents said they must be able to trust the brand to do the right thing. They said it is a deal-breaker or the deciding factor in their brand buying.

Eighty-nine percent of the respondents wanted brands to shift to producing products that help people meet the challenges of the pandemic, with 44% saying brands must do this to earn or keep their trust and 45% saying they hope brands will do this, but there is no obligation.

Ninety percent of respondents said they wanted brands to partner with the government and relief agencies to address the crisis, 50% saying they must do this to earn or keep their trust and 40% saying they hope brands will do this, but there is no obligation.

Eighty-six percent of respondents wanted brands to be a safety net, stepping in where they are needed and able, to fill gaps in the government’s response to the virus. Of that number, 41% said they must do this to earn or keep their trust and 45% said they hope brands will do this, but there is no obligation.

“If a company were to sell their business to someone else, the value of their trademarks would be a large portion of the sale price, like their IP assets,” McLauglin said. “For example, if Nike were to go out and say, ‘We are going to (allegedly) use sweatshops again and we are not going to wear masks because we don’t think they look good,’ then the value of their company would fall, presumably a lot. So, you have to do the legwork at first by putting the legal protection in place but then maximize its use. Having a trademark registration does you no good unless you are going to use it and profit from it.”

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