Everybody Wants A 'COVID' Trademark. Few Will Get One.

By Bill Donahue
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Law360 (April 22, 2020, 9:08 PM EDT) -- As expected, the U.S. Patent and Trademark Office is facing a flood of trademark applications related to the coronavirus pandemic, despite the fact that experts say the vast majority of them will be rejected.

The rush for such trademarks is a replay of a familiar phenomenon, where opportunistic applicants think they can lock down a monopoly on a term or phrase that's captured the national conversation.

Spoiler alert: They usually can't. Experts say most of the applications are likely doomed to fail, since a widely used generic term cannot, by definition, serve as a distinctive designator for a particular private company.

COVID trademark applications are filling up the USPTO's database.

"For a term to qualify as a trademark, it has to signify a single source for a particular type of good or service," said Julia Anne Matheson, a trademark attorney at Hogan Lovells. "A term that is in widespread descriptive use, in this case to identify a worldwide pandemic, is not likely to acquire that secondary meaning."

But six weeks into the pandemic, wishful brand owners are apparently undaunted by those long odds.

Like the outbreak itself, the number of trademark applications at the USPTO has grown rapidly. On March 11, when the World Health Organization declared the crisis a pandemic, just three applications had been filed for "COVID" trademarks; by Wednesday, there were 130 of them.

They include "Fvck COVID," "Everybody v. COVID" and two for "COVID Killer." One is aiming to register the slogan "It's Not Just Clean, It's COVID Clean."

Applications for "coronavirus" trademarks have also skyrocketed, increasing from just four on March 11 to more than 40 by Wednesday. The proposed marks include "I Survived Coronavirus," "Coronavirus Tax Amnesty Program" and "Love In The Time Of Coronavirus."

Other terms linked to the crisis have also seen huge waves of applications. More than 20 have been filed for trademarks involving "pandemic," including from one applicant who wants to register "Pandemic Couture" as a trademark for "face masks and other clothing items that can be used to prevent people from spreading a virus."

Forty or so more applications have been filed for marks involving "quarantine." Several more are seeking "Rona" — a slang abbreviation for "coronavirus." A cloud computing company is aiming to register "Crush The Curve," a riff on the public health slogan "flatten the curve."

Some applications appear more legitimate. A New Jersey medical diagnostics company that has long owned a registration for the trademark "OneSwab" is applying for several new trademarks that expand the brand name to "COVID-OneSwab."

But most of the applications are likely to be refused, either because they fail to function as trademarks or because the applicants never actually prove that they're using them on real-world goods. It's a pattern trademark attorneys have seen many times before.

"I'd love to know the thinking here behind these filers," said Eric Ball, a trademark attorney at Fenwick & West LLP. "My best guess is that they are similar to the people who stockpile hand sanitizer or toilet paper for resale. It's a misguided get-rich-quick scheme."

--Editing by Kelly Duncan and Jill Coffey.

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