Opportunistic Trademarking of Slogans: It’s No Clown Issue, Bro

In June 2012, Bryce Harper, the Rookie of the Year ballplayer for the Washington Nationals, responded to a reporter's inquiry with the statement, "That's a clown question, bro." The humorous retort was aired widely in the media, and gained such popularity that even Senate Majority Leader Harry Reid used it at a press conference. The day after Harper made the statement, he filed an intent-to-use trademark application for the slogan on t-shirts, hats and other types of products typically used by owners to express their personalities (herein called "billboard products"), and the United States Patent and Trademark Office ("PTO") quickly gave its approval for registration. The incident raised questions about the propriety of using trademarks to gain exclusive rights to display clever or influential slogans, such as "Three-Peat" and "Let's Roll," on billboard products. This article explains why the PTO, under most circumstances, should not be so quick to register such phrases, but instead should wait until the applicant can demonstrate secondary meaning.