In Brief:  A popular catch phrase can become someone’s trademark.

Here’s What Happened:

Melissa Viviane Jefferson is better known by her stage name Lizzo. Lizzo’s limited liability company, Lizzo LLC filed several trademark applications for the phrase “100% THAT BITCH” as used for a variety of goods and services, including wearing apparel.

The USPTO refused registration based on the phrase failed to function as a trademark. A failure to function refusal means that the proposed mark doesn’t distinguish the goods and services or doesn’t indicate source. In other words, consumers understand that the term or phrase conveys a concept and doesn’t act as a source or product identifier.  For example, DRIVE SAFELY doesn’t function as a trademark for cars.

Lizzo appealed to the TTAB.

On appeal, the USPTO argued that Lizzo didn’t originate the phrase. Consumers would recognize the phrase as a message of female empowerment that does not indicate source. In support, the USPTO provided an online dictionary definition of the phrase, articles containing Lizzo’s statements that she did not originate the phrase, and several examples of use of the phrase in connection with clothing and related goods on retail websites.

Lizzo admitted that the mark was derived from an internet meme “I just took a DNA test, turns out I’m 100% that bitch”.  The TTAB held that trademark rights are a function of use and not creation. Screenshots of Lizzo’s websites showed that Lizzo elevated 100% THAT BITCH from a lesser known phrase to a more memorable status. Now consumers encountering the phrase in connection with clothing would associate it with Lizzo and her music.

The TTAB reversed the USPTO’s failure to function reversal.

Why You Should Know This:  A failure to function refusal can be hard to anticipate. A phrase on a webpage can either be an observation or source or product identifier. A slogan on a tee shirt is decoration. But if it also appears on labels and a website for clothing, it functions as a trademark.

Case Information:  In Re Lizzo LLC, TTAB, Serial Nos. 88466264 and 88466281, 2/2/23.

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