The U.S. Patent and Trademark Office is no stranger to receiving a flood of trademark applications following a news or pop culture event: from President Trump’s accidental tweet of “Covfefe” to the creation of the slogan “Boston Strong” following the 2013 Boston Marathon bombings, trademark applicants often try and capitalize on these events in order to claim exclusive rights to popular terms. COVID-19, the novel coronavirus that has reached pandemic status around the world, is no different. Nearly 45 trademark applications relating to coronavirus and COVID-19 have been filed since February 2020 and remain pending, including “CORONAVIRUS SURVIVAL GUIDE” for “Magazines in the field of survival, protection, medicine and pandemics”, “I SURVIVED COVID-19” for “clothing” and “COVID-19 VAX” for “vaccines”.
While some of these applications may result in a Federal trademark registration, many won’t for at least three reasons: First, an applicant must demonstrate that the owner has a bona fide intent to use the trademark in commerce or is using the mark in commerce; simply being the first to file the application does not confer trademark rights. Second, a phrase or words receiving a Federal trademark registration must identify to consumers that the owner of the trademark is the source of the goods or services offered (i.e. the trademark must be distinctive). Third, the trademark cannot merely describe the good or service (otherwise, no one would be able to describe the coronavirus or COVID-19 using these terms). Trademark applicants that seek to capitalize on a global pandemic will likely have difficulty meeting all three of these requirements.
Takeaway: Brands who wish to file trademark applications involving COVID-19 or similar words or phrases may find themselves unable to obtain a registration. Additionally, these brands should be mindful of regulators who are enforcing their authority against brands that are claiming cures or remedies for COVID-19, when none currently exist.