Can you own the rights for the word ‘Covfefe’?
Following President Donald Trump’s midnight tweet about “covfefe,” the U.S. Patent and Trademark Office (USPTO) has received more than 30 trademark requests containing the word “covfefe.” The types of goods covered by the applications span a variety of products and services. The trademark is being used to sell coffee, clothing, alcohol, bumper stickers, children’s cribs, and even investment advice.
Few weeks ago, representative Mike Quigley (D-Ill.) introduced the COVFEFE Act, which stands for Communications Over Various Feeds Electronically for Engagement, and would classify social media posts from Trump as presidential records that are required to be preserved.
The day after Trump’s original tweet was posted, a Mississippi man tried to secure the trademark on another tortured acronym of the fake word: “Carry on vigilantly fighting evil for ever.”
Unfortunately for the applicants, most if not all of the applications will be rejected. First, all but the first application is likely to be issued an office action due to a likelihood of confusion with the prior pending applications. Next, to file a trademark on an intent to use basis, there must be a bonafide intent to use. Lastly, a trademark must designate the source of goods and thus cannot be merely “ornamental.” In other words, a person cannot simply put a name, logo, or slogan on the front of a shirt and then use that as a specimen of use in a trademark application. For apparel, the USPTO requires the applicant to show use of the trademark on a hangtag or label. In the absence of such a specimen, the USPTO will typically reject the application.
No one can really own a word, at least not in and of itself. If a word is used as a trademark, however – meaning, it is used to identify a particular product or service – the owner of the mark can prevent others from using it to sell similar products or services. For instance, the company Apple doesn’t own the word “apple,” but they certainly own the trademark Apple for computers and mobile devices. Given the number of trademark applications for “covfefe” marks – 34 as of June 28 – it is unlikely that any of those applicants could ever obtain completely exclusive rights to use the term.
With regard to the intent to use, in the event of a dispute the applicant must prove that they truly have intention to use the trademark in commerce and must be able to produce evidence of such an intent in the form of some documentary evidence. Also, when applying, the applicant must sign a statement confirming that they actually intend to use the trademark for commercial purposes. The hope is to discourage people from filing applications looking for an easy payday with no intention of ever actually using the trademark.
Trademark rights are acquired through use of the trademark in commerce, not by filing an application to register the mark. This is different than in many other countries. In the U.S., having your trademark registered provides some additional statutory benefits, like having national priority to the mark, and the ability to register the mark with Customs to help stop counterfeits. But, unless and until you’re using your mark to identify your products, and offering them for sale, you do not have any trademark rights.
However, it is still possible that someone could end up owning the word “covfefe” as a trademark. Actually, several people could, for various goods or services. If someone makes proper trademark usage of the word, using it to identify his or her brand, then in theory, sure, there is no reason it couldn’t function as a trademark.
Many people think that by filing a trademark application they can claim a word for their own – and prevent others from using it – without using the mark themselves. For example, if you printed a t-shirt that said, “What the covfefe?,” you are very unlikely to have acquired any trademark rights, because that is not going to be considered a proper trademark use.
But, what is a proper trademark use?
“The kind that tells the consumer who made the product,”. “In the t-shirt example, it’s probably the label typically attached at the back of the neck. That’s not to say that someone couldn’t sell Covfefe brand t-shirts, Covfefe brand mugs, Covfefe brand plumbing supplies, or even Covfefe brand accounting services. But to acquire trademark rights, the person will need to use the term as a trademark – a source identifier – which is more than just putting a funny word on a shirt.”
As for the infamous tweet, perhaps one day we’ll know what happened to the President that brought the abrupt and garbled end to the ill-fated tweet.