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.
Lady Gaga is an American recording artist. She is a singer, a songwriter, and a performer. She recently won a Golden Globe® for her work on the American Horror Story television show. She also was nominated for an Oscar® in 2016. As of 2016, she has sold over 27 million albums worldwide. She also owns registrations for her “Lady Gaga” stage name. I feel confident in stating that Lady Gaga is famous.
Yet in an opinion dated March 30, 2016, the Trademark Trial and Appeal Board determined that “the evidence in the record does not rise to the level needed to show that LADY GAGA has achieved true fame among consumers…” Apparently, not even Lady Gaga’s trademarks are commercially recognizable enough to be deemed legally famous in certain areas.
If LADY GAGA is not famous, then how does one reach the level of “fame” in the context of trademarks? This appears to be an absurdly high standard of proof. How do we explain a legal opinion that seems so entirely disconnected from reality?