Background
GO & Associates, LLC filed an application with the USPTO in June 2020 seeking to register the phrase EVERYBODY VS. RACISM on the principal trademark register for various apparel items and services promoting public awareness of racial reconciliation. The company sought trademark protection for the phrase in connection with goods described as promoting social awareness and encouraging community engagement on racial justice issues.
The USPTO’s examining attorney refused registration, and the Trademark Trial and Appeal Board (TTAB) affirmed that refusal. The Board found that EVERYBODY VS. RACISM was widely used in a non-trademark manner — that is, the phrase appeared extensively in public discourse, on social media, at protests, and in political contexts as an expression of a social message or value, not as a signal that goods or services originate from a particular company. GO & Associates appealed to the Federal Circuit, arguing that its use of the phrase in commerce entitled it to trademark protection.
The Court’s Holding
The Federal Circuit affirmed the refusal to register. The court grounded its analysis in the threshold requirement of trademark law: a mark must function as a source identifier — it must signal to consumers that goods or services come from a particular producer. A phrase that consumers understand primarily as conveying an informational message, a social value, or a political sentiment does not serve this source-identifying function and therefore cannot be registered as a trademark.
The court reviewed the record evidence showing widespread use of the phrase EVERYBODY VS. RACISM as a slogan expressing anti-racist sentiment by many parties — not just GO & Associates. This pervasive non-trademark use is highly relevant: when a phrase is commonly used to convey a social message rather than to identify a specific commercial source, it fails to acquire the source-identifying character that trademark law protects. The court emphasized that the standard for trademark eligibility is not whether a phrase is distinctive or memorable in an artistic or rhetorical sense, but whether it functions in the marketplace as an indicator of origin. EVERYBODY VS. RACISM did not meet that standard.
Key Takeaways
- A phrase used widely as an informational, political, or social message fails to function as a trademark even when an applicant uses it on goods — widespread non-trademark use undermines any claim that the phrase identifies a single commercial source.
- The threshold requirement for trademark registration is source identification: consumers must perceive the mark as pointing to a particular producer, not merely as conveying a general message or sentiment.
- Socially resonant phrases and slogans — particularly those that express political or social values that many groups adopt — face high hurdles to trademark registration because of their inherently informational character.
- Applicants seeking to register slogans, social-cause phrases, or advocacy-oriented marks should demonstrate that their use in commerce has created a distinctive association with their particular goods or services, separate from the phrase’s broader informational or ideological use.
Why It Matters
This precedential ruling contributes to the Federal Circuit’s growing body of case law on the “failure to function” doctrine — the principle that certain matter, regardless of how it looks on paper, simply cannot serve as a trademark because the public does not and would not perceive it as a source indicator. Social slogans, hashtags, and activist phrases face a particularly difficult path to registration when they have gained widespread use as political or social expressions independent of any commercial activity.
For businesses that wish to build trademark rights in phrases with social significance — for example, companies that make cause-related merchandise — the case offers a cautionary lesson. The key is not simply putting the phrase on a hat or a t-shirt; it is demonstrating that consumers in the marketplace actually associate the phrase with a particular commercial source. When a phrase is already widely used across society to convey an informational or ideological message, trademark protection is unavailable. Businesses in the cause-related marketing space should focus their intellectual property strategies on distinctive branding elements that are specific to their goods and not already widely used as social expressions.