Various media outlets were abuzz recently about how Marshawn Lynch received a federal trademark registration for “I’m Just Here So I Won’t Get Fined” for t-shirts and other apparel items. He uttered that phrase more than 20 times at a press conference before last year’s Super Bowl in response to a variety of questions from the media. A few weeks later—after receiving an avalanche of additional coverage over his pre-game presser—Lynch filed a trademark application for that now infamous quip.
Some were shocked and expressed their disappointment that Lynch would try to appropriate that phrase all to himself. But his application is not surprising, or even unexpected. Mr. Lynch has proven that he is not only a world-class running back, but also an astute connoisseur of trademarks. He owns several trademark registrations, including his nickname “Beast Mode.” Besides, famous athletes and celebrities are constantly scurrying to the PTO to try to lock up their key phrases and memes. So, Mr. Lynch’s latest off-field moves should not come as a surprise.
What is a surprise, though, is that the PTO actually registered the phrase based on what Mr. Lynch submitted as his “specimen of use.” Phrases emblazoned on t-shirts in big bold letters are routinely rejected by the PTO as being merely “ornamental.” In the PTO’s own words, “[a] slogan or a design across the front of a t-shirt or other clothing or a tote bag, for example, would not be acceptable, since it is likely to be perceived as ornamental or decorative rather than a trademark.” See also, In re Pro-Line Corp., 28 USPQ2d 1141 (TTAB 1993) (BLACKER THE COLLEGE SWEETER THE KNOWLEDGE on t-shirts primarily ornamental slogan that is not likely to be perceived as source indicator). In re Thomas J. Hulting d/b/a No More RINOs! Enterprises, 107 USPQ2d 1175 (TTAB 2013)(refusing registration for phrase “No More RINOS!” appearing on t-shirt).
Here’s the specimen submitted in support of the application showing the t-shirt with the phrase in question appearing in big, bold, block letters:
Click here to view image.
Based on TTAB precedent, it’s hard to see how this one ran past the examiner. Of course, under Section 2(f) ornamentation can be registered if it has acquired “secondary meaning,” but there is no indication in the prosecution history that any such evidence was presented or considered by the examiner.
So, did the examiner get it right, or did he misread the TMEP playbook? We probably won’t know unless this mark is somehow challenged and the replay officials up in the booth are asked to decide the issue. But if Beast Mode defends his trademarks before the Board like he piles up yards on the field, any such challenger may be in for a long afternoon.