In Re:  GO & Associates, LLC

Docket No. 2022-1961 (IPR2020-01524  (https://cafc.uscourts.gov/opinions-orders/22-1961.OPINION.1-22-2024_2256749.pdf)

LOURIE, PROST, REYNA

January 22, 2024

Brief Summary:  Board decision GO’s “EVERYBODY VS RACISM” proposed mark “fails to function as a source identifier” (“not solely because it contains informational matter”) affirmed.

Summary:   GO & Associates, LLC (GO) appealed against the United States Trademark Trial and Appeal Board’s decision, which supported the examining attorney’s refusal to register the mark “EVERYBODY VS RACISM.” This refusal was rooted in the assessment that the mark did not function as a source identifier for GO’s goods and services, such as clothing and public awareness services. The mark was viewed as an informational message and widely used in various contexts unrelated to GO’s brand. Despite GO’s arguments and search engine evidence, the examining attorney and the Board considered the mark more as a sentiment than a source identifier, especially given its usage in the context of anti-racism protests.

Under the Lanham Act, a mark must distinguish an applicant’s goods and services from others, serving as a source identifier. In this case, the Board determined that “EVERYBODY VS RACISM” did not meet this criterion due to its extensive use in non-trademark ways and its perception as conveying an anti-racist message rather than identifying GO’s products or services.

GO challenged this decision, arguing against the Board’s assessment and claiming that the refusal based on the “Informational Matter Doctrine” was unconstitutional. However, the court found these arguments unconvincing. It clarified that the refusal to register a mark is not solely because it contains informational matter, but because it fails to function as a source identifier. The court emphasized that marks with informational content could still be registered if they identify a single commercial source, which was not the case for “EVERYBODY VS RACISM.”

The court rejected GO’s constitutional challenge and other arguments, affirming the Board’s decision. This conclusion was based on substantial evidence that the public is unlikely to associate “EVERYBODY VS RACISM” with GO’s goods and services. Consequently, the court upheld the Board’s refusal to register the mark.

Patrick Halloran

Pat has a Ph.D. in Microbiology and Immunology from The University of Health Sciences / The Chicago Medical School (now the Rosalind Franklin Institute (North Chicago, IL) (1994)). He also completed post-doctoral studies at The National Cancer Institute (1994-1996) where he developed novel…

Pat has a Ph.D. in Microbiology and Immunology from The University of Health Sciences / The Chicago Medical School (now the Rosalind Franklin Institute (North Chicago, IL) (1994)). He also completed post-doctoral studies at The National Cancer Institute (1994-1996) where he developed novel approaches for gene therapy of melanoma. Pat has been an attorney (IL) since 1999 after graduating from Chicago-Kent College of Law, which was recently ranked as one of the top five law schools for Intellectual Property in the U.S. (U.S. News and World Report link). Pat also has a B.A. in Biology from Augustana College (Rock Island, IL; 1989) where he was on two NCAA Division III National Championship football teams (1985, 1986). He currently resides in Center Valley, PA.