If you’re up on current events in the USA, skip to the next paragraph. If you don’t follow cultural and political developments in the USA, then you’re unaware that the performance of the current occupant of the White House has led crowds at certain events – notably some college football games and some automobile races – to shout, in 4/4 time, “F**k Joe Bi-den” (clap, clap, clap clap, clap). Recently, at a race won by a driver named Brandon, with the FJB chant clearly audible in the background, a TV announcer wearing a straight face told the viewers that the attendees were chanting “Let’s go Brandon”. Thus was born a polite way for critics of Mr. Biden to express their displeasure with both him and the various media outlets that seem unable to find anything wrong with his mental acuity or his administration’s policies, without actually uttering what many consider to be a profanity.
The popularization of the phrase has caused some consternation (ok, apoplexy might be a better word) among some of the self-appointed cognoscenti working for tabloids like the New York Times and the Washington Post, who seem to have quickly forgotten some of the rhetoric used by their colleagues and others with reference to Mr. Biden’s immediate predecessor. This popularization has also, predictably, resulted in the availability of items like hats, t-shirts, flags and bumper stickers bearing the phrase “Let’s Go Brandon”. And wherever you find commerce in a phrase, you can be sure that someone is going to try to cash in by protecting the phrase using trademark or copyright law. Or in the case of political speech, to try to suppress that speech, by asserting rights in the phrase (recall Hillary “I am a dingbat, hear me roar” Clinton’s attempt to stifle the production of paraphernalia mocking her campaign slogan in 2014, or a similarly unsuccessful attempt in 2015 by one Donald “Don’t Call Me Thin-Skinned” Trump to silence critics).
So, surprise, surprise (not!), as of today there are six pending applications for US trademark registrations for the phrase “Let’s Go Brandon” (some with an exclamation point):
For those of you who don’t want to look up each application, here’s a summary:
|
No. |
applicant, location |
class |
description |
first use/first use in commerce |
filed |
|
97061110 |
NovelTEA Gifts LLC, Wisconsin |
25 |
“Clothing, namely, sweatshirts, T-shirts, tank tops, long sleeve shirts; headwear, namely, caps and hats; baby clothing, namely, one piece garments; children's clothing, namely, t-shirts” |
02 Oct /05 Oct 21 |
05 Oct 21 |
|
97059307 |
NovelTEA Gifts LLC, Wisconsin |
16 |
bumper stickers |
02 Oct/04 Oct 21 |
04 Oct 21 |
|
97087688 |
Shenzhen Hengda Century Electronic Commerce Co.,Ltd, China |
24 |
“Brocade flags; Cloth flags; Fabric flags; Flags of textile; Nylon flags; Plastic flags” |
Both 01 Oct 21 |
22 Oct 21 |
|
97085454 |
YANG LEISHENG, China |
24 |
“Pillow covers; Cloth flags; Fabric flags; Nylon flags” |
Both 02 Oct 2021 |
21 Oct 2021 |
|
97084267 |
Robert Wong DBA Bulletproof Tips Corporation, California |
24 |
“Flags of textile; Flags of textile or plastic; Banners and flags of textile; Brocade flags; Cloth flags; Fabric flags; Fabrics with Let's Go Brandon printed thereon for the manufacture of Flags; Nylon flags; Plastic flags” |
Both 19 Oct 2021 |
20 Oct 2021 |
|
97070721 |
Angela Thurman, Tennessee |
25 |
“Clothes, stickers, hats, and bags” |
none |
12 Oct 2021 |
If the USPTO allows these to proceed, it looks like some folks are going to be duking it out over rights. Based on e.g. the PTO’s past granting of registrations of certain names of places in Yosemite National Park to a private party rather than the US government, no questions asked, it won’t be surprising if the USPTO ultimately grants some of these registrations. And unlike, say, the short-lived contretemps over the rights in the phrase “Left Shark” (short-lived because within a month of the Superbowl in 2015 it was a forgotten “meme” and no one was going to buy “Left Shark” merchandise), Mr. Biden will presumably remain in office until January 20, 2025, so the market for “Let’s Go Brandon” items will remain strong for some time.
But it’s not clear to me that any of these entities are entitled to TM registration, for at least three reasons.
First, none of them came up with the phrase. I suppose that’s more of a patent person’s way of thinking than a TM person’s way of thinking, but something seems amiss if one person can coin a phrase and someone else can then obtain rights in the phrase, merely because that other person was the first to put the phrase on a t-shirt. The fact that within a period of about two weeks, multiple entities sought TM protection for the same types of goods indicates that it’s an obvious idea. Of course, “obviousness” is a patent term, not a TM term, but if you’re not a TM attorney, I’m sure you’ll get the idea.
Second, going back to first principles, trademarks are supposed to indicate the source of the goods. If you’re buying French fries in a red carton with the golden arches on it, you’re supposed to be getting the genuine article from Mickey D’s. Same thing if your shoes say “Nike” or your purse says “Gucci”. It’s both an indication to the buyer that the goods meet a certain standard of quality (or not), and for the status-conscious, a signal to others that someone paid for the real McCoy. Here, none of that is applicable. There’s no company called “Let’s Go Brandon” that’s producing goods, and no one who plans to wear a cap with “Let’s Go Brandon” printed on it cares who the manufacturer is or that others see that the wearer bought the cap from a particular manufacturer. The wearer just wants to express displeasure with the POTUS (or to indicate his support for a friend or relative named Brandon). So TM protection seems inapposite here. These TM registration applications appear to be attempts at unjustified rent-seeking, as none of the applicants invented anything or invested time and money in developing a brand (or, as far as I know, raising a Brandon).
The logic behind that second reason derives from the third reason: if, as the pro-Biden press asserts, the phrase is now a veiled way of saying “F**k Joe Biden”, then use of that phrase constitutes political speech, and therefore the placement of it on articles of clothing, bumper stickers or flags shouldn’t be subject to the injunctions that can come with trademark protection. What the Chinese Communist Party does to its own people is bad enough; should it now be given control over political speech in the USA too?
So it seems that the parties seeking to register “Let’s Go Brandon” are really saying, “Let’s Go, No-Brand”.
By comparison, despite the Supreme Court’s 2019 decision allowing the registration of “FUCT” as a mark (on the grounds that the “immoral or scandalous” clause of the Lanham Act was unconstitutional), no one has sought to register “Fuck Joe Biden” or F**k Joe Biden” for any class of goods.