Slogans, phrases or terms that consumers perceive as “merely informational in nature” are not registrable. In re Brunetti, 2022 USPQ2d 764, at *11 (TTAB 2022); In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229 (TTAB 2010).

“Matter may be merely informational and fail to function as a trademark if it is a common term or phrase that consumers of the goods or services identified in the application are accustomed to seeing used by various sources to convey ordinary, familiar, or generally understood concepts or sentiments. Such widely used messages will be understood as merely conveying the ordinary concept or sentiment normally associated with them, rather than serving any source-indicating function.” Id. at *12, see also In re Greenwood, 2020 USPQ2d 11439, at *6 (“The more commonly a phrase is used, the less likely that the public will use it to identify only one source and the less likely that it will be recognized by purchasers as a trademark.”).

“Where the evidence suggests that the ordinary consumer would take the words at their ordinary meaning rather than read into them some special meaning distinguishing the goods and services from similar goods and services of others, then the words fail to function as a mark.” In re Ocean Tech., Inc., 2019 USPQ2d 450686, at *3 (TTAB 2019) (internal punctuation omitted).

“In analyzing whether a proposed mark functions as a source identifier,” the focus is on “consumer perception.” In re Vox Populi Registry, Ltd., 25 F.4th 1348, 2022 USPQ2d 115, at *2 (Fed. Cir. 2022).

“Truth Hurts”

Pop star Lizzo filed a trademark application for “100% THAT BITCH”—a line from her song “Truth Hurts”— for clothing. The registration was refused because the Examining Attorney asserted that phrase was a “commonplace expression widely used by a variety of sources to convey an ordinary, familiar, well-recognized sentiment,” and thus did not function as a trademark. The Examining Attorney further stated that “evidence that consumers may associate the phrase with the famous singer/song because it was a lyric in the singer's song does not entitle the applicant as a singer-songwriter to appropriate for itself exclusive use of the phrase.”

TTAB Appeal

The Trademark Trial and Appeal Board (“TTAB”) reversed the refusal. In re Lizzo LLC, 2023 USPQ2d 139 (TTAB Feb. 2, 2023). While the evidence did show the term being used “predominantly in an ornamental manner,” much of it was in in context of discussing Lizzo and the origin of the song lyric.

This lessens the weight we otherwise may have accorded the ornamental nature of those uses in showing that the phrase fails to function as a trademark.

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But more importantly, considering the entirety of the record, we find that most consumers would perceive 100% THAT BITCH used on the goods in the application as associated with Lizzo rather than as a commonplace expression.

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The evidence of record here indicates that Lizzo and her hit song “Truth Hurts” popularized the lyric and elevated 100% THAT BITCH from what may have been a lesser known phrase (the evidence of record only points to use of that phrase from the 2017 meme onward) to more memorable status.

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[W]e find that the evidence of record shows that consumers encountering 100% THAT BITCH on the specific types of clothing identified in the application―even when offered by third parties―associate the term with Lizzo and her music.

Moreover, there is no per se legal rule against song lyrics serving as trademarks.

The refusals to register were reversed because the record as a whole did not establish that the proposed mark is a common expression in such widespread use that it fails to function as a mark for the goods identified.

The trademark attorneys at Thomas P. Howard, LLC enforce trademarks or defend against infringement nationwide including in Colorado.