Owner Of Harry Caray's Restaurants Finds You Can't Just Trademark A Widely Used Hashtag
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As someone who spends a great deal of time writing about trademark law and trademark disputes, I am often repeating that trademark law was put in place specifically to keep the public from being confused as to the source of affiliations of a particular good or service. This is a necessary repetition, as far too many people think that trademark law was designed to allow opportunists to lock up language for commerce simply because they thought to do so. While the USPTO has historically been far too lenient on trademark matters, it is a fact that a mark that doesn't function to inform the buying public as to the source of a good or service is an invalid mark.This is a lesson recently learned by Grant DePorter, owner of Chicago's Harry Caray Restaurant Group, who attempted to register the hashtag "#MAGICNUMBER108", a reference to the Cubs long-held World Series drought.
Initially, the examining attorney assigned to DePorter's application said that the trademark application was not worthy of registration, because #MAGICNUMBER108 is informational matter that fails to function as a trademark to indicate the source of DePorter's goods and to identify them from the goods of others. The TTAB affirmed the examining attorney's opinion. The main issue with DePorter's application is that the mark is a commonly used term or expression, which means that it is less likely for the public to use it to identify only one source. As such, it would deem the mark as being unworthy for registration status.In other words, as this was a hashtag already in wide circulation when DePorter decided to apply for his trademark, the hashtag wouldn't serve as a reference for anything to do with Harry Caray's restaurants. One cannot simply witness something trending widely and then decide to lock that language up for themselves. Even if, as is the case with DePorter, one is in fact using that phrase or hashtag in commerce. Directly from the ruling:
Any evidence demonstrating widespread use of the wording is relevant, including, in this case specifically, social media tweets and posts of the type the Examining Attorney made of record in this application. The evidence provided by the Examining Attorney shows wide use of the proposed mark in a non-trademark manner to consistently convey information about the Chicago Cubs' World Series appearance and win after a 108-year drought. This evidence is competent to suggest that upon encountering Applicant's 'mark,' prospective purchasers familiar with such widespread non-trademark use are unlikely to consider it to indicate the source of Applicant's goods.Again, for those of us who have some working knowledge of trademark law and its purpose, this is all plainly obvious. That it isn't obvious to the public writ large is the result of a permission culture fully out of control coupled with a USPTO far too often found sleeping at the wheel. This is obviously a case of attempted opportunism.And it's a breath of fresh air to see the TTAB get this one right.
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