As of this morning, there are seven (7) pending applications
with the United States Patent and Trademark Office (USPTO) to register some
variation of OK BOOMER as a trademark.
Thanks in part to the New York Times
article in October, the casually dismissive phrase “ok, boomer” went from a
limited internet audience to a mocking cultural term du jour. Inspired would-be entrepreneurs rushed to file
applications with the USPTO to “own” this phrase as a trademark.
It is unlikely any of these applications will mature into a
trademark registration. Simply put, this is not how trademarks work. Following in
the footsteps of such whimsical terms like COVFEFE, TACO
TUESDAY, and ALTERNATIVE FACTS, most of these alleged marks will fail to
acquire a registration from the USPTO.
Because they almost certainly fail to function as trademarks.
Trademark law is quirky. Look no further than the attention
being given to recent filings to the USPTO by LeBron James and Ohio State
University. TACO TUESDAY and THE. These legal matters are receiving
But the subsequent news blurbs, articles, and media stories all seem to have
one important thing in common:
Nearly everyone is wrong about what is going on here.
At this point, I expect ESPN and Darren Rovell to fail
at describing the intricate
proceedings of trademark matters. That much is a given. It is everyone else
piling on these stories that is making me nervous. Accordingly, to address
these issues, and because the internet practically runs on top 10 lists, here
are 10 misconceptions about LeBron and Ohio State’s trademark filings.
In May 2019, Gibson Brands,
Inc. sued Armadillo Distribution Enterprises, Inc. for trademark
infringement, unfair competition, and counterfeiting.
Armadillo may not be a well known name, but it is affiliated with the guitar
brands Dean Guitars and Luna Guitars, which compete with Gibson.
Gibson is one of the most prominent names in the electric guitar industry,
alongside Fender. In this lawsuit, Gibson accuses Armadillo/Dean of infringing
at least four “body shapes” of its electric guitar models: the Flying V, the
Explorer, the ES, and the SG, each of which Gibson cites as a registered
This case caught my attention because I am a guitar player
and I often write about music and the music industry as it relates to
trademarks and copyrights. Here
I do not personally own any Gibson-branded guitars (they are too heavy in the
neck), but I do own one acoustic Dean Guitar – though not one of the types that
is accused of infringement in this case. With regard to electric guitars, I
prefer Schecter Guitars. Always a
Armadillo has not yet responded with an Answer to this
lawsuit, but I anticipate Dean Guitars will present a substantial defense to
all of Gibson’s claims. It is important to note that this is not a patent case.
This is not about who “invented” the particular shape or style of an electric
guitar. Any patent rights for these designs would have expired decades ago.
Instead, this dispute concerns trademarks. It essentially seeks to determine
whether a particular shape of a guitar evokes a specific source in the minds of
the relevant consuming public. With regard to the guitar industry, there is a long
history associated with these particular “body shapes” and how they impact pop
culture and the competition between the most popular brands and manufacturers.