Can “Boston Strong” Really be Trademarked?

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Generally speaking, Americans are fairly accepting of a person’s creative pursuits to making a buck. After all America is the land of the free. However, recent events have brought a new meaning to what is fair game when it comes to making a profit.

Just days after the April 17th Boston bombings, a total of seven applications were submitted to the United States Patent and Trademark Office (“USPTO”) seeking to trademark the now famous catchphrase “BOSTON STRONG.” Although there are many purposes to filing a trademark, one of the main reasons to do so is to exclude others from using the phrase to profit from it commercially. With six of the seven trademarks filed having to do with clothing and accessories and the seventh related to beer, this would potentially mean only one of these eight applicants would have the right to profit from the catchphrase.

At this time it is unclear what the USPTO will do. However, trademark registration of a catchphrase after a national tragedy is nothing new. After the 9/11 attacks the Todd M. Beamer Foundation successfully filed for and received trademark rights to the phrase “LET’S ROLL”. The phrase became a national catchphrase after it was publicized that these were the last words of United Flight 93’s passenger Todd M. Beamer.

Keep in mind that a trademark can literally be any word, phrase, sound or even scent. The only requirement is that the mark be used for commercial purposes to identify the source of a particular product or service. It is arguable that merely using the phrase “BOSTON STRONG” on a t-shirt or other clothing is probably not enough to establish rights to a trademark. This is because using the phrase in this way does not necessarily identify the source of such goods, especially where so many other companies have sold t-shirts with the exact same catchphrase. With that said, the same argument probably does not apply to Samuel Adams brewer Boston Beer Co., who has filed the trademark application for “BOSTON STRONG” as it relates to beer. According to the beer company, they plan to use the phrase in relation to its 26.2 Brew. Here, the catchphrase actually identifies a particular product that Boston Beer Co. sells and distributes, their 26.2 Brew. This possibly could be viewed as an appropriate use of the catchphrase as a trademark, assuming the USPTO does not find other grounds to deny their application.

At the end of the day, there are many reasons the USPTO could deny any of these applicants trademark rights to the catchphrase BOSTONG STRONG and most trademark experts believe the applicants will not be successful. What’s more, any action by the USPTO will take another 6-7 months, which leaves you to wonder if the decision to trademark the catchphrase BOSTON STONG was really worth the $325 filing fee.

www.onlinetrademarkattorneys.com.

Published May 8, 2013 by Alex Spurr.

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