April 21, 2014

Why "Boston Strong" is not a Federally Registered Trademark

by Stites & Harbison, PLLC


[caption id="attachment_2003" align="alignright" width="199"]

2013 Boston Marathon
2013 Boston Marathon Finish Line, By Aaron Tang via Wikimedia Commons[/caption]

In the wake of last year's Boston Marathon bombings, two Emerson College students, Christopher Dobens and Nicholas Reynolds, began marketing t-shirts with the slogan "Boston Strong" hoping to raise a few hundred dollars for the victims of the attack. Despite their modest goal, the slogan became the rallying cry for survivors and victims of the tragedy, and the students' "One Fund" charity has raised more than a million dollars for the cause.

Seizing upon the popularity of the slogan, various entities filed at least nine trademark applications for "Boston Strong," including a coffee company, a t-shirt company, and the company that makes Sam Adams beer. ESPN recently reported, however, that the Patent and Trademark Office has rejected all nine trademark applications "because consumers are accustomed to seeing this slogan or motto commonly used in everyday speech by many different sources ... the mark fails to function as a trademark."

The Trademark Office's view on the "Boston Strong" trademark applications raises a fundamental question: What is a trademark? Simply put, if a phrase (or word, logo, color, or sound) designates the source of goods or services (that is, who is selling those goods and services), it is a trademark. If the phrase is used in a manner that does not indicate who is selling the goods or services (or ceases doing so) the phrase is not a trademark. In the case of "Boston Strong," the Trademark Office found that the phrase has been widely used by various sources in commercial and non-commercial ways and in various contexts, and therefore cannot (for now) be a trademark.

While there is certainly an upside to the public being able to use the phrase "Boston Strong" freely, there is also downside. In the right hands, the control that could be exercised with a federal trademark registration could ensure that money from the use of "Boston Strong" would be used to benefit the victims of the attack. Without trademark protection, anyone can sell products using the phrase "Boston Strong" without giving any money to aid those touched by the tragedy.

Trademark issues aside, all of us at Trademarkology celebrate the spirit of courage, strength, and perseverance that is embodied by the Boston Marathon and the city of Boston.

The lawyers at Trademarkology provide online trademark registration services backed by the experience and service of one of the nation's oldest law firms. Click here to begin the process of protecting your brand name with a federally registered trademark.