We live in an era where news, information, and trends move very quickly. Words, phrases, or ideas that were obscure or non-existent yesterday can be the top trending story tomorrow. These overnight trends are now routinely used by opportunists in trademark applications. But trademarks are meant to be used to identify the source of and to distinguish the goods and services of one seller or provider from those of another. Indeed, as the USPTO recently reiterated, “[t]he Trademark Act is not an act to register mere words, but rather to register trademarks…. The more commonly a phrase is used, the less likely that the public will use it to identify only one source and the less likely that it will be recognized by purchasers as a trademark.” For example, when the President tweeted out the word “covfefe” on May 31, 2017, the internet’s use of the word in social media, public discourse, and merchandise exploded. The word was not only used in memes, but was displayed on hats, t-shirts, jewelry, bodysuits, and mugs. See id. Accordingly, when an opportunist attempted to trademark the term, the USPTO rejected it: “the market is awash in products that display the term [covfefe]…” And as such, “the public will not understand ‘#covfefe’ to identify one, and only one, source of clothing and to recognize [the] applicant as that source when it appears on [the] applicant’s goods.”

If you want to get rich covfefe using the trending word or phrase of the moment, you might be able to sell some swag but you probably will not be able to trademark the trend.

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