Can you get a Covid-19 trademark?
Most of us have heard the popular saying: When life gives you lemons, make lemonade.
So how can you turn the Coronavirus “lemons” into lemonade?
Some optimistic trademark applicants are hoping to turn disaster to fortune by applying for trademarks related to the Covid-19 crisis.
Below are some of the pending Covid-19-related trademark applications in New Zealand:
COVID-19
COVID-19 2020
KIA KAHA NZ COVID 19
NEW ZEALAND 100 PERCENT COVID FREE
I SURVIVED COVID-19
ANTI-COVID19 THE NEW NORMAL IS SPACED OUT *COVID 2020
The question is, which of these marks are likely to be accepted for registration and which will be rejected by the IP Office?
Are COVID-19 marks registrable?
Every trademark application must meet the legally prescribed criteria for registrability. When is a trademark not registrable? The key question is always whether the mark is capable of distinguishing your good from those of other traders. If the mark contains words that are:
laudatory
generic
descriptive
confusing
deceptive; or
offensive,
it’s unlikely it will qualify for registration.
Something that not everyone is aware of, is that certain words, which should be available to all players in a specific industry, to describe goods and services in that field, or some characteristic or quality of them, cannot be trademarked.
However, in other categories, the same words, might be acceptable as they are not descriptive in that context. This is why all trademark applications are first examined at the IP Office to check that they meet the legal criteria for registrability. If accepted, the trademark is then advertised to allow third parties a chance to submit trademark oppositions. This process is to ensure that no one entity is granted an unfair monopoly on words (or marks) which should be available to everyone to use.
For example, no one can own the word COURIER for class 39 transport services, as all courier companies need to be able to use that word to describe their services. However, it’s perfectly acceptable for a luggage company to own a trade mark registration for COURIER for suitcases and another company to have registered COURIER for herbicides. This is because COURIER is not a widely-used descriptive word within those particular industries.
Will they?
It’s unlikely that most of the trademark applications filed for COVID or including the word COVID will ever get registered. The IP Office will probably object to them on the basis that they’re descriptive (eg COVID TESTING for medical services), deceptive (eg ANTI-COVID for soap) or offensive (eg FVCK COVID).
Clever invented brands such as DISCOVID for information services might just be registrable. And it will be interesting to see Coronavirus-related trademarks for products unrelated to the health crisis will get registered. For example, some IP Offices might be prepared to accept applications covering clothing. Will we soon see people sporting T-shirts with a trademarked slogan,“I survived Covid-19”?
It’s probably best to proceed with caution - think carefully before applying for a COVID trademark and seek legal advice if you’re still keen to proceed. For those affected by the Covid-19 crisis, instead of trying to make “Covid-lemonade”, focusing on brand protection for your existing business might be a better strategy. There is much wisdom in another proverb:
“When fishermen cannot go to sea, they repair nets.” ― Nabil Sabio Azadi
Make sure there are no ‘holes’ in your brand protection by registering a trademark for your business, before someone else does. Here’s what you need to know about how to get a trademark.