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3:16 as a Trademark?

Posted in Articles, Branding, Fashion, First Amendment, Marketing, Mixed Bag of Nuts, Television, Trademarks, Truncation

Over the weekend, IPBiz reported that WWE (World Wrestling Entertainment) has filed an application to register 3:16 as a trademark for clothing items.

A Google search confirms that 3:16 has religious significance as it is a common truncation that signifies one of the most widely quoted verses from the Bible, namely, John 3:16.

Despite other confusing media reports that the WWE has “trademarked” 3:16, IPBiz is correct that an intent to use trademark application was filed by WWE at the end of July.

While I could hazard a guess, technically it is presently uncertain whether WWE intends a religious meaning, at least from the application file, as no specimen of use is of record yet.

Ironically, our firm’s firewall leaves me to hazard a guess on WWE’s intended meaning too.

Yes, our sturdy firewall has deemed anything appearing on the WWE website to be “unsafe or unsuitable” for access, so we may need the kind assistance of our dear readers to assist in our understanding of the meaning intended by the WWE for this claimed mark.

Either way, it will be interesting to follow the USPTO’s examination of this application, given the newly minted Examination Guide 2-17 on “Merely Informational Matter,” which directly targets religious matter, among other matter (citations omitted from below quote):

Some proposed marks comprise direct quotations, passages, or citations from religious texts (e.g., JOHN 3:16 and I AM THE WAY, AND THE TRUTH, AND THE LIFE. NO ONE COMES TO THE FATHER EXCEPT THROUGH ME).  Religious texts are holy books or scriptures, such as the Bible, Quran, Torah, and Diamond Sutra, which the different religions or spiritual movements consider sacred or essential to their religious traditions and beliefs. Such quotations, passages, or citations are often used by the providers of goods/services (and by consumers) as an expression of affiliation with, support for, or endorsement of the ideals or concepts found in the religious texts in which the quotation, passage, or citation originated. Because consumers are accustomed to seeing such wording used in this manner in the marketplace, consumers are unlikely to perceive it as indicating source and instead would perceive the wording as conveying a merely informational message of religious affiliation, endorsement, or support for the messages in the texts.

Where a quotation, passage, or citation from a religious text serves as an indicator of support or affiliation and not of source, such wording fails to function as a mark.  The refusal applies regardless of whether the identified goods/services themselves are religious in nature.  However, the inclusion of religious goods/services further supports this refusal.  The following examples illustrate this point:

  • Mark is comprised, in its entirety, of a direct quotation/passage and/or citation from a religious text (e.g., Allah is the Light of the heavens and the earth The Qur’an, Surah An-Nur 24:35; I AM THE WAY, AND THE TRUTH AND THE LIGHT.  NO ONE COMES TO THE FATHER EXCEPT THROUGH ME; or MATTHEW 19:26).  The entire mark must be refused registration because the matter fails to function as a mark.

  • Mark is comprised, in part, of a direct quotation/passage and/or citation from a religious text and registrable matter (e.g., Hear, O Israel: The Lord is our God; the Lord is one and the image of the Earth being held in a pair of hands; ROMANS 8:28 and an image of a teddy bear).  The direct quotation/passage and/or citation must be disclaimed because they fail to function as marks.

Do you think the WWE will be wrestling with USPTO over the meaning of 3:16 soon?

If so, how might the USPTO explain the issuance of these registrations: 3:16, Studio 3:16, and 3:16 Lure Co?

And, finally, might the newly minted examination guide conflict with the recent Supreme Court decision in Tam, holding that the USPTO’s refusal of federal trademark registration based on viewpoint violates Freedom of Speech?