TL:DR No one owns the trademark “Black Lives Matter”
In light of the recent protests seen across the world, and particularly in the United States, the Patent and Trademark Office has seen a large surge in trademark filings for those hopeful to gain a monopoly over “Black Lives Matter” in some form.
Over 50 trademark filings were made after June 2020, many soon after the death of George Floyd. Although some of these filings are either in the charitable area or plan to create goods and donate the profits to charitable organizations benefiting the BLM movement, others are not so kind. It is unclear whether some of the companies filing on sayings such as “Black Lives Matter” are trying to hold a monopoly over the saying and profit off of the goodwill of the social and political movement, preventing those who hope to benefit the movement from using the words at all.
How would a trademark help?
Trademarks generally benefit both the owner of the mark and consumers. The trademark owner is able to prevent others from benefitting from use of their mark, while consumers know that what they are getting, whether it be a good or a service, is of a certain quality.
For example, if you purchase Nike branded clothing, you may understand that the price point means that you will receive a higher quality of clothing that you can rely on for years to come. If someone else came out with a Nike t-shirt line that was of poor quality, this could not only confuse the consumer who thought they were buying genuine Nike products, but could also weaken the Nike brand name, causing others to believe that the Nike product standards were lowered.
What does the USPTO say?
The Trademark Office has mainly rejected trademark applications on “Black Lives Matter” so far, claiming that the words do not function as a trademark because the slogan is an “informational social, political, religious, or similar kind of message that merely conveys support of, admiration for, or affiliation with the ideals conveyed in the message.” The idea behind this kind of rejection is to prevent others from profiting off of the ideals of others without having a direct connection with the movement, such as in the example discussed below.
Why trademark Black Lives Matter?
Given that companies are applying for trademark protection of “Black Lives Matter”, you may wonder why they would bother applying for the mark and what the implications of owning the mark may entail. Why file for trademark protection on “Black Lives Matter” at all? Is trademark protection the proper avenue for monitoring the movement?
Because “Black Lives Matter” is a general phrase for a movement and not a slogan associated with a particular cause or charity, it is even more difficult to tell whether use of “Black Lives Matter” (or “BLM”) as a brand even supports the movement. The entire movement is united in supporting the validity of the black individual and the black population, which is sadly something that still needs a movement to even be addressed. On a more granular level, BLM has such varied applications that it is almost impossible to identify and isolate a precise cause or initiative.
So is it possible?
This ambiguity paired with the ubiquity of the phrase makes it a prime target for profiting off the goodwill of a community who wants to support these ideals – a surge of people demanding a reality where adding “black” is not necessary to acknowledge the value of a black man, woman, or child, a reality where lives matter.
If part of the trademark registration process actually evaluated a legitimate connection to the movement, then perhaps registrations could be a way to assure the public that the brand truly supports BLM. But even then, what would be the standard for “a legitimate connection.” As it is, the USPTO is generally denying registration of the phrase and acronym. This does not stop companies from using the phrase for personal gain.
Earlier in 2020, the Black Lives Matter Foundation collected over $4 million in donations (presumably toward the BLM movement) yet the organization had no ties to the movement and did not donate most of the funds to benefit the movement. One of the primary organizations that does benefit the movement through flowing its donations directly into BLM-benefitting grassroots organizations is Black Lives Matter Global Network Foundation. Someone looking to donate quickly could (and did) easily confuse the two organizations. A trademark could help weed out fraudulent organizations such as the Black Lives Matter Foundation, particularly when confusion could be misused for a bad actor’s benefit.
It's down to us.
As this point, the onus is on the consumer to determine if a company, product, or service actually supports Black Lives Matter. For those who support this movement, hopefully, this is only a minor burden they are willing to bear to affect change.
This article was prepared and written by Abbie, WD’s IP Magizoologist. Standard, hopefully familiar-sounding, disclaimer: Any opinions expressed here are of the writer’s. Any information provided is for educational or informative purposes only and are not intended as legal advice.