In the first Spiderman movie of the superhero era in which we still find ourselves, J. Jonah Jameson believed he thought of a catchy title for the bad guy. To his assistant, he then said the following declarative: “Call the patent office, copyright the name “Green Goblin.” I want a quarter every time someone says it!”
This line demonstrates a mistake made by many, and it isn’t simply that the Library of Congress rather than the United States Patent and Trademark Office registers copyrights. Instead, it illuminates a general misconception that through intellectual property protection, a common phrase can become the exclusive right of one individual or entity. We see this belief personified in trademarks, when an individual or entity seeks to register a common—and arguably public—phrase. Were such a registration to issue, the holder would have a legal presumption of ownership of the phrase and the exclusive right to use the phrase throughout the United States and any U.S. territory on or in connection with the goods/services listed in its trademark registration certificate.
A search of the USPTO’s Trademark Electronic Search System (TESS) reveals that the mark “BLACK LIVES MATTER” has been applied for thirty times. The Office received its first of these applications in January 2015, and its most recent less than ten days ago. Similarly, the mark “I CAN’T BREATHE” was first applied for in December 2014. See U.S. Trademark Application No. 86479784. Since May 29, 2020, the same phrase or slight alterations thereof have been applied for more than ten additional times, while applicants have applied to register the term “ALL LIVES MATTER” or iterations thereof eighteen times.
Unfortunately for the owners of these applications, all of whom have paid a filing fee of at least $225 USD—and in many instances more—most of the applications are unlikely to register. Here is why . . .