— Jessica Gutierrez Alm, Attorney

After the last presidential debate, the Republican nominee’s “such a nasty woman” utterance led to somewhat of a rallying cry.  Within minutes, #Nastywoman was trending across social media, and streaming of Janet Jackson’s “Nasty” spiked 250% on Spotify.

While many debated the societal and political implications of the comment, a few enterprising individuals recognized a business opportunity instead.  On the day following the debate, two federal trademark applications were filed for the phrase.  Mike Lin filed an application for NASTY WOMAN for “on-line retail store services featuring clothing, posters, pillows, mugs, bags, and mobile electronics cases and covers.”  On the same day, Colin Al-Greene filed a trademark application for NASTY WOMEN 2016 for use in conjunction with t-shirts.

Since then, eight more applications for NASTY WOMAN, and one application for NASTY WOMEN VOTE, have been filed with the USPTO.  Five of the NASTY WOMAN applications were filed by the same applicant–A.V.W. Inc.–for various goods, including one for a NASTY WOMAN body spray.  Interestingly, all five applications were filed as “use in commerce” applications, rather than “intent to use” applications.

A “use in commerce” application under Section 1(a) of the Lanham Act is an application for a mark already in use in connection with the goods or services identified in the application.  This type of application allows the applicant to establish a priority date earlier than the application filing date for a mark already in use.  However, as stated in the Trademark Manual of Examining Procedure, the relied upon use must be “a bona fide use” of the mark “in the ordinary course of trade.”  That is, the goods must be “sold or transported in commerce.”

A “use in commerce” applicant must submit a specimen illustrating actual use of the mark in commerce.  In many cases, a specimen may be a photo of a product that was sold bearing the mark, or a tag, product label, or packaging, for example.  A specimen is not a mere mock-up of the applicant’s intended use.

Following are some of the specimens filed in connection with A.V.W. Inc.’s NASTY WOMAN marks.

Application No. 87212614 for coffee mugs.
Application No. 87218567 for spiral-bound notebooks.
Application No. 87218577 for backpacks, book bags, sports bags, bum bags, wallets and handbags.

At the very least, these will likely lead to ornamental refusals, as the marks appear as mere ornamentation across the goods, rather than designators of source.  As far as whether these specimens indicate a bona fide use in commerce, they look like hastily drawn mock-ups to me.  What do you think?  Is this enough for a bona fide use?