In the age of social media, phrases can go viral overnight. Such viral moments have become a staple of online culture—shaping trends, influencing language, and even driving consumer behavior. Their viral nature can make phrases powerful cultural assets, leading individuals and businesses to try to protect them as trademarks and cement their reputation in culture. Registering a phrase as a trademark however can be challenging.
In recent years, the U.S. Patent and Trademark Office (USPTO) and its Trademark Trial and Appeal Board (TTAB) have grown increasingly conservative, frequently rejecting applications for phrase marks under the “failure to function” doctrine. This can arise when a phrase has become so widespread that it no longer serves as a source identifier of goods and services. Ironically, the viral nature of a phrase, the key to its popularity, can undermine its ability to function as a trademark.
The “Failure to Function” Doctrine
Under the “failure to function” doctrine, a …