Precedential No. 22: WYHA? TTAB Affirms Failure-to-Function Refusal of "No More RINOs!" for Bumper Stickers, T-Shirts, and Buttons

This applicant sought to register the phrase No More RINOs!, in standard character form, for bumper stickers, clothing, and campaign buttons, but the Board affirmed the PTO's refusal to register under Sections 1, 2, and 45 on the ground that the applied-for mark is a merely ornamental or informational political slogan that fails to function as a trademark. Would you have appealed? In re Thomas J. Hulting d/b/a No More RINOs! Enterprises, 107 USPQ2d 1175 (TTAB 2013) [precedential].

The Board observed that "there are certain designations that are inherently incapable of functioning as trademarks to identify and distinguish the source of products in connection with which they are used." Common laudatory phrases ordinarily used in business or in a particular trade or industry are not registrable (E.g., ONCE A MARINE, ALWAYS A MARINE; DRIVE SAFELY; and THINK GREEN). [How about ALWAYS THINK SAFELY LIKE A GREEN MARINE? - ed.].

The key issue, of course, is how the designation in question would be perceived by relevant consumers. In that context, the Board must consider how the proposed mark is displayed on the specimens of use: the size, location, dominance, and significance of the alleged mark are all relevant factors.

Examining Attorney Tricia Sonneborn submitted evidence that "No More RINOs!" is a commonly-used political slogan meaning "No More Republicans In Name Only." The evidence showed that consumers are accustomed to seeing that phrase on bumper stickers, t-shirts, novelty pins, and other items, from a variety of sources. Consequently, they will not perceive this phrase as a source indicator, but rather as a political message or statement.

Moreover, the size, placement, and dominance of the wording on Applicant's specimens of use are consistent with informational or ornamental use, not trademark use. Even though the phrase as displayed on Applicant's t-shirt (above) is smaller than on its other specimens of use, "given the significance of the phrase, it does not have the commercial impression of a source indicator."

Applicant pointed to its substitute specimens of use [see example below], which added the tagline "By Statesman Enterprises." However, the inclusion of that tagline on the specimens made no difference in the Board's analysis, since it is not part of the applied-for mark. Finally, Applicant's intent that the slogan should function as a trademark is likewise irrelevant.

And so the Board affirmed the refusal.

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Text Copyright John L. Welch 2013.

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