As some of you may have noticed, one my esteemed colleagues, Jonathan Applebaum, recently wrote an entertaining and informative post regarding Major League Baseball Player Bryce Harper’s efforts to trademark the phrase, “That’s a clown question, bro.” This was just the most recent example of so called catch phrase trademarks where people have tried to harness the publicity of clever or witty public commentary in an effort to sell merchandise. Examples abound, particularly in sports. In addition to the recent Bryce Harper example, we also have Bart Scott’s relatively well-known, “Can’t wait.” Scott made this statement after the Jets beat the Patriots in the NFL Playoffs.
So riddle me this. Are catch phrases such as the two identified above the proper subject of trademark protection, or are catch phrase trademarks unwarranted monopolies on statements and comments in the public domain? Consider this. The purpose of trademark law is generally to aid the consumer in differentiating among competing products and to protect the producer’s investment in its brand reputation:
“[T]rademark law, by preventing others from copying a source-identifying mark, ‘reduce[s] the customer’s cost’s of shopping and making purchasing decisions,’ for it quickly and easily assures a potential customer that the item — the item with this mark — is made by the same producer as other similarly marked items that he or she liked (or disliked) in the past. At the same time, the law helps assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product.” Qualitex Co. v. Jacobson Products Co, 514 U.S. 159 (1995).
If I want to buy a t-shirt, coffee mug, or bumper sticker with the phrase “That’s a clown question, bro” on it, I don’t want them because I believe they came from a single source or the same producer. I want them simply because they have the phrase on them. The phrase itself is the basis for the demand. In trademark parlance, I believe the catch phrase itself should be characterized as “aesthetically functional” and therefore ineligible for trademark protection.
I think Bart Scott’s own comments about his catch phrase illustrate my point.
Once I started to hear people were trying to make T-shirts, I said, ‘I tell you what, if anybody is going to benefit off ‘Can’t Wait’, it should be me.’
Trademark law is not about providing a benefit to those who first turn a clever phrase, its about protecting the information exchange between consumers and products regarding product quality and reputation. What do you think?