March 17, 2020

Coronavirus and Trademarks

As (hopefully) most of the country practices social distancing and extra conscientious hygiene techniques, somewhat less than most of the country may be curious about what this Coronavirus could possibly have to do with trademarks. There’s always an angle. At least, I am working hard to find one since the Coronavirus has occupied a lot of space in my brain for the past couple weeks and I am passed the deadline for this post.

Most people are by now familiar with the social media stories about consumers associating Coronavirus with Corona beer. But those seem to be little more than urban legend. A press release from Constellation Brands described such stories as misinformation and insisted that such “claims simply do not reflect [their] business performance and consumer sentiment.”

Fewer people seem to have fastened on the similarities between the virus’s name, COVID-19, and COVID, a brand of audiovisual connectivity products. The latter may be grateful to be spared this particular 15 minutes of fame.

Ironically, the two brand owners referenced above espouse a similar theme in their mission and motto. In the same press release mentioned above, Constellation Brands describes part of its mission as “helping people connect.” Covid, Inc. uses the tag line “Your Connection Company” (as seen here). Of course, social distancing, not social connections, are the order of the day.

Though Constellation Brands addressed the social media memes in the press release referenced above, both it and Covid, Inc. have otherwise remained relatively silent about the similarities of their key trademarks and the name of the virus causing the current pandemic. This is probably best. As the virus has already killed numerous people and threatens the lives of thousands more, there is little to no room for witty banter that could build up a brand’s goodwill through the ironic association.

There is one way in which the two companies differ in their approach to brand protection, however. Constellation Brands (through Cervecería Modelo de México, S. de R.L. de C.V.) owns numerous federal trademark applications and registrations for marks comprised in whole or in part of the mark CORONA. By contrast, Covid, Inc. owns no federal applications or registrations for the mark COVID. This could become an issue.

Individuals and organizations are often inspired to seek registration of marks related to the current events. This pandemic appears no different. Sometimes these applications genuinely relate to a mark to be used in connection with goods or services that relate to or are inspired by the current event. Other times, these applications are misguided attempts to reserve rights in a term that may or may not be used as a mark to indicate the source of goods or services.

The pandemic has inspired several people to file applications seeking registrations of marks incorporating aspects of the name of the virus. Currently there are six federal applications seeking registration for marks containing the term “covid,” all filed within the past two months and most clearly relating to the virus (either in anticipation of a vaccine, charitable fundraising, and/or clothing items proclaiming survival).

There are at least three pending federal applications seeking registration for marks containing the term “coronavirus.” Two of these clearly relate to the virus. The third seems more inspired by it, as it seeks registration for CORONAVIRUS (stylized) for use in connection with performances by a musical group and music recordings. This latter application poses an interesting issue as Cervecería Modelo owns a pending application seeking registration of the mark CORONA BEACH HOUSE for use in connection with live musical performances.

Leaving aside the traditional likelihood of confusion factors, one could imagine that Cervecería Modelo and Constellation Brands would not be keen on having someone register a mark that includes ‘corona’ for use in connection with goods and services related to those it plans to offer under its own brand. In this case, Cervecería Modelo and Constellation Brands is much better positioned to address such a concern because of its existing federal registrations for marks including the term CORONA and because its pending application for CORONA BEACH HOUSE has priority over the recently-filed CORONAVIRUS (& design) application.

By contrast, Covid, Inc. does not appear to own any federal applications or registrations for marks consisting of or comprised of the term COVID. Therefore, if an application seeking registration of a mark incorporating this term were filed for use in connection with any goods or services related to those offered by Covid, Inc., it would have a harder time with enforcement than it would if it already had registrations in place.

One may not be able to predict when another pandemic or other current event will happen to share a name that resembles one’s brand. But one can be prepared for such an occasion by taking pains to register one’s brands and monitor the landscape for enforcement.

While practicing social distancing at home, consider the foregoing examples. Are your key brands protected? Or should you take precautionary and preparedness measures now before it is too late?