Thursday, December 20, 2018
Should I Trademark T-Shirt Phrases?
Save your money for marketing purposes. You're unlikely to get any protection at the U.S. Patent and Trademark Office (USPTO) if you try to register clever t-shirt phrases.
But if Nike can "Just Do It" why can't I? Companies can register slogans and phrases if they signify a source for goods or services. So, if M&Ms brings back their slogan, "Melts in your mouth, not in your hands" on a t-shirt, that's branding for their business. But funny short phrases that are meant to provoke thought or laughter don't serve as branding for your t-shirt business. These phrases are considered "ornamental" by the USPTO because they are a form of decoration, not a source-identifier. You will have a hard time overcoming the trademark examiner's objection ... and the $325 trademark fee is not refundable.
What about the Supplemental Register? The Supplemental Register is like a bullpen for descriptive trademarks that don't presently qualify for Principal Register now but will, after several years of use. A trademark application that's rejected for ornamentality would not qualify for the Supplemental Register. We've written more about the t-shirt business here and here.