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?

  • Paul

    WWE has been using “3:16” for over 20 years.

    https://www.youtube.com/watch?v=tjWPoQWdmjg

    it is possibly one of the most popular wrestling phrases in WWE history

    • stevebaird

      Paul, thanks for the help, I guess I’m not within the relevant public of professional wrestling any longer, but I do remember Baron von Raschke from the 70s, and his famous claw hold. It will be interesting to see how the USPTO handles the 3:16 application and what first use date the WWE eventually relies upon.

      https://en.wikipedia.org/wiki/Baron_von_Raschke

      • Paul

        The “Austin 3:16″was going on back in my college days and my friends were big fans. It should be an interesting prosecution, as you pointed out, depending on the date of first use the WWE could show acquired distinctiveness with lengthy continuous use on apparel, consumer recognition, and large apparel sales numbers.

        • Lawrence Ebert

          Goes back at least to 1996. First relates to “Jake the Snake,” then Austin: On June 23, 1996, after WWE superstar Stone Cold Steve Austin defeated Jake “The Snake” Roberts to win King of the Ring tournament, Austin gave the WWE universe the infamous speech that put Austin 3:16 on the map.

          • stevebaird

            Thanks for the additional information, and for your original post that sparked mine, Lawrence! Good stuff. Steve

          • James Mahoney

            With all due respect to both you and Baron von R, Steve, Killer Kowalski made the claw hold famous several decades earlier. He was among the top wrestlers in the ’50s and ’60s. Killer founded a school for professional wrestling in Malden, MA, and ran it until he died relatively recently. Read all about it! https://en.wikipedia.org/wiki/Killer_Kowalski. ;-)

          • Lawrence Ebert

            To be clear, 3:16 does arise from John 3:16; from Austin talking to Snake: “You sit there and you thump your Bible, and you say your prayers, and it didn’t get you anywhere! Talk about your Psalms, talk about John 3:16… Austin 3:16 says I just whipped your ass!”. To borrow from copyright, maybe this was transformative! But as to trademark, does the relevant consumer associate 3:16 (alone) with a single source?