Who’s a Trademark Knucklehead Now? From Covfefe to COVID-19 to Aunt Jemima
These have been strange times for all of us, and uniquely strange to those toiling in the field of trademark law. And for us it’s getting stranger every day.
Cue Frank Sinatra’s “Send in the Clowns.”
What I hadn’t yet realized is that trademark applications have become first cousins of social memes—the listicles of intellectual property. Back in March there were eighteen COVID trademark applications, which sure seemed a lot for a grim pandemic. Guess what?
There are now 358 registration applications, including such oddballs as:
- COVID NINJA
- CAN’T TOUCH THIS – COVID-19
- COVID COUCH POTATO;
- COVID CONDOM (for “antimicrobial protective sleeves and covers for coffee pots and other products having handles”).
There is even one application with a nod to our President’s typo: COVID-19 TAKES DOWN COVFEFE (Serial No. 88849328).striking down the statutory ban on trademark registrations for words that are “immoral” or “scandalous” there are two applications to register the trademark in SCIENCE THE SHIT OUT OF COVID (Serial Nos. 88887594 and 88933198).
“Trademark” LIVES MATTER
But, as I came to realize, focusing on COVID applications misses the bigger picture here. For example, there are now over two dozen applications to register versions of BLACK LlVES MATTER, along with many more to register other [INSERT NOUN] LIVES MATTER trademarks, including:
- VETERANS LIVES MATTER
- REPUBLICAN LIVES MATTER
- BLUE LIVES MATTER
- YOUR LIVES MATTER
- DOGGIE LIVES MATTER
- SATANIC LIVES MATTER
But the most powerful trademark story of 2020 is not the COVID knuckleheads or the various LIVES MATTER applications but a profound cultural reawakening that has tarred and feathered some of our oldest and most powerful brands.
Indeed, the trademark world has experienced its equivalent of the removal of statues of Confederate generals, Christopher Columbus, and other cultural icons.
Cultural Reawakening of Iconic Brands
|Take the AUNT JEMIMA trademark for syrup and pancake mix, which dates to the 19th Century, was formally registered as a U.S. Trademark in 1905, and originally featured a Black woman dressed as a minstrel character. (Website/CBS Austin)|
|Or the UNCLE BEN’S trademark and logo, first used in commerce back in 1937 and featuring an elderly Black man in a bowtie, apparently based upon the image of a popular waiter in a Chicago restaurant. (Website/NY Daily News)|
|Or LAND O’ LAKES, the Minnesota-based dairy company whose butter package had, for nearly a century, featured a Native American woman kneeling against a background of green pine trees and a blue lake. (Website/Twin Cities)|
|Or, of course, the WASHINGTON REDSKINS, a registered trademark for nearly seventy years and a lucrative brand that has generated millions of dollars for the NFL football team in sales of apparel and other merchandise. (Website/Los Fresnos News)|
All four trademarks and logos had been criticized for decades as offensive and disparaging racial stereotypes and slurs. The Redskins had fought and prevailed in several major litigation efforts by groups of native Americans and others seeking to cancel the federal registration. But heading into 2020, their owners were still defending all four trademarks, and no one more adamantly than the owner of the Redskins.
The Impact of Social Justice on Iconic Trademarks
But then George Floyd was killed, and Black Lives Matter protests erupted around the country. And what happened to those four iconic trademarks?
- Quaker Oats (owner of the AUNT JEMIMA registration) announced it will change the name and the image for its pancake and syrup products.
- As for UNCLE BEN’S, the owner of that brand, Mars Inc., announced that it will “evolve” its visual brand identity in response to those who believe that its logo and name perpetuate racial stereotypes.
- Land ‘O Lakes, Inc. quietly removed the Native American woman from their logo, although to their credit they apparently did so in February, before the protest movement erupted.
- The Washington team has announced it is abandoning its REDSKINS trademark.
These are genuinely inspiring developments that underscore the powerful cultural influence of expression protected by the First Amendment.
But before we take a victory lap around the U.S. Patent and Trademark Office, we must remind ourselves that just as antibiotics cannot rid the body of all pathogens, a powerful wave of social consciousness cannot rid us of all trademark knuckleheads. And thus, I predict that once the AUNT JEMIMA, UNCLE BEN’S and REDSKINS trademarks are formally abandoned by their current owners, we will see new applications to register those same trademarks.
So, stay tuned.
Michael A. Kahn
Mike concentrates his practice in copyright, trademark, First Amendment and media law, including libel and privacy rights. He is a widely recognized trial lawyer in the area of general commercial litigation and regularly advises clients on a range of intellectual property matters.
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