Anticipate This!™ | Patent and Trademark Law Blog

I’m Not A Trademark, Bro!

Posted in General Commentary by Mike Dockins on December 21, 2007

AT! recently discovered that the phrase “Don’t taze me, bro!” was one of the most popular phrases of the year. Perhaps you are now aware of the origins of this phrase. On September 17, 2007, Senator John Kerry addressed a collection of University of Florida students. Near the end of a question and answer session, University of Florida police forcibly removed a student, Andrew Meyer, from the speech, restraining him through direct force and stunning him with a tazer. Mr. Meyer was removed for exercising his right to speak, though disrespectful and vulgar it may have been.

Shortly after the event, several videos of the episode were then posted on the Internet. The video shot with Meyer’s camera had 2.6 million views by October 19, 2007 and was considered a viral video. Why? Because of the aforementioned most popular phrase. During the course of being removed from the speech, Mr. Meyer can be seen struggling against his UF police escort. At one point, Mr. Meyer was threatened to be (and was eventually) tazered prompting him to shout out, “Don’t taze me, bro!” Thus the phenomenon began. See the video here.

So what does this have to do with IP? Everything. AT! admires the entrepreneurial nature of the applicants for the following marks: DON’T TASE ME, BRO! for various shirts, DON’T TAZE ME BRO! for books, puzzles, posters, and the line, and DON’T TASE ME, BRO! for jackets, pants, and other clothing. However, we question whether the applicants appreciate how a trademark is used and what it is. Section 45 of the Lanham Act defines a trademark as: “any word, name, symbol, or device, or any combination thereof- (1) used by a person or (2) which a person has a bona fide intention to use in commerce… to identify and distinguish his or her goods… . In essence, a trademark is a source identifier. A trademark is not merely a trivial phrase of pop culture that may adorn an article of clothing or pamphlet.

We are rather certain that two of these applications will be rejected for likelihood of confusion with the first to be filed. Sorry applicants, changes such as substituting an “s” for a “z” won’t do it, and neither will adding or removing a comma. More importantly, unless the applicants can show the use of the DON’T TAZE ME BRO! mark as a true trademark or brand of goods, an ornamental refusal of the applications will also be issued. Frankly, we doubt the specimens provided by the applicants will be more than a shirt or bumper sticker with the phrase emblazoned thereacross. It is certainly a valiant effort to capitalize on a fleetingly popular phrase. Heck, it’s the American way. But ornamental use and trademark use are very different creatures.

One surprising and successful applicant/entrepreneur was the applicant for the now-abandoned registration for JESUS JUICE for wine. We think Michael Jackson may have even purchased a few bottles of the stuff himself.