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The Patent and Trademark Office of the United States refused to register a Lizzo trademark application for “100% That Bitch” in apparel.
The reason why is because a phrase/trademark has to function as a trademark.
Taking a T-shirt and puting a phrase on top of it – we call that “ornamental use”. Ornamental use – slogans, phrases – are generally not registerable as a trademark.
There has to be some kind of source identification of that particular mark.
With apparel, usually it’s where the buyer would expect it to be. Maybe on the front pocket of a dress shirt; maybe on the inside of a sportscoat. That’s what consumers are expecting – not the front of a t-shirt, which is what this was.
Generally, the Patent and Trademark Office is going to reject an application for stuff that is ornamental.
Now, in this particular case what bumps it from ornamental to a source identifier for Lizzo? In a precedential decision, the Trademark Trial and Appeal Board stated that the phrase “100% That Bitch” has become associated with her through the song “Truth Hurts” – through awards that it has won – through the recognition it has received.
There are lots of sales about that particular phrase. Let’s also not forget the trick that her lawyers – a great trick, by the way – her lawyers used. The front of the T-shirt says “100 That Bitch” and on the back it says “Lizzo.” Or “100 That Bith” with a picture of Lizzo and then the name Lizzo under it. There’s that phrase and the source identification – they go hand in hand.
That is true with apparel regardless of the phrase. Remember ornamental use for a trademark is just putting a phrase on something. It’s generally not enough. There must be that association of the source of the apparel and that was the key here. That was the key from bumping that from an application to a registration.