How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask RGMacEsq Your Own Question
RGMacEsq
RGMacEsq, Attorney
Category: Business Law
Satisfied Customers: 15919
Experience:  Licensed Texas General Practice Attorney
19487448
Type Your Business Law Question Here...
RGMacEsq is online now
A new question is answered every 9 seconds

Hello, I see several phrases on t-shirts that are not trademarked.

This answer was rated:

Hello, I see several phrases on t-shirts that are not trademarked. Am I able to file a trademark and collect a royalty or some form of compensation when that slogan is used?

RGMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

RGMacEsq :

If you did not come up with that phrase on your own, or use it as a mark of your business, then probably not. Short phrases are not copyrightable (which is why you typically see them all the time on shirts, etc...). A quote from a movie generally can't be copyrighted. Now for it to be trademarked, it has to represent your business.

RGMacEsq :

That is, "I'm Lovin' It" is a trademark of the McDonald's corporation.

RGMacEsq :

That indicates source as a slogan of the corporation.

Customer:

That makes sense.

RGMacEsq :

But say you want to use "It's so hot, milk was a bad choice" from "Anchorman", that's not something that can be trademarked (since it does not refer to a company in particular).

Customer:

an example is I am contemplating creating a fantasy sport apparel line of clothes and merchandise.

Customer:

I currently see phrases like "Fantasy Baseball Legend" on t-shirts

Customer:

but do not see that slogan trademarked anywhere though

RGMacEsq :

That slogan probably can't be trademarked, because it's too generic.

RGMacEsq :

And short phrases are not copyrightable.

RGMacEsq :

So while you could use the slogan (not the design or logo, mind you, but the words) you could not protect them and force a royalty.

Customer:

That's what I was afraid of. I couldn't have been the first guy to come up with that idea.

RGMacEsq :

Unfortunately, no. And if it's already preexisting in use, then your chances of getting a trademark dwindle significantly.

RGMacEsq :

There would be a trademark examiner that would look for prior uses of the mark, and if it has become generic or something that generally not considered something that is a trademark, but a pithy phrase, then it would be denied anyway.

RGMacEsq :

...and it would need to refer to your business. Think of "plop plop, fizz fizz, oh what a relief it is" (Alka Seltzer) or "We try harder" (Avis). Those are things that can be trademarked. But simple phrases that don't refer to the business itself cannot be.

RGMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Wow, very helpful.

Customer:

Thought I stumbled on a million dollar idea!

Customer:

definitely a 5

RGMacEsq :

Like you said, you're probably not the first to think about that, but don't let that stunt your creativity. Just keep thinking up ideas, and maybe one will stick.

RGMacEsq :

Thanks, XXXXX XXXXX good luck to you.

Customer:

one thought

Customer:

say i register a doman name

Customer:

fantasybaseballlegend.com

Customer:

and sell merchandise with that slogan

Customer:

does that help me at all?

Customer:

or does the fact the slogan is pre-existing hurt me either way?

RGMacEsq :

You would haveto trademark the name to be able to enforce it. And even if you had the trademark, there would have to be "infringement". The crux of trademark law is "likelihood of confusion". That is, confusion that consumers will believe the products or services originated from the trademark owner. If there is an action against someone using a mark, the court is going to look at the following factors to see if there is such a likelihood.




    • Strength of the mark



    • Proximity of the good



    • Similarity of the marks



    • Evidence of actual confusion



    • Marketing channels used



    • Type of goods and the degree of care likely to be exercised by the purchaser



    • Defendant's intent in selecting the mark


  • Likelihood of expansion of the product lines

RGMacEsq :

So if the court determined that any use after you start using the mark is infringing (use before gets "common law" rights) then you could sue for infringement.

Customer:

Target sells a Fantasy baseball legend T-shirt.

RGMacEsq :

But that's a steep hill to climb.

RGMacEsq :

Their prior use would preclude you from suing Target for trademark infringement.

RGMacEsq :

Only use subsequent to your trademark registration would be actionable against those companies that did not have prior use.

Customer:

There you go. David vs Goliath.

Customer:

So helpful

Customer:

I appreciate it that advice.

Customer:

and I'll be back with more questions.

RGMacEsq :

My pleasure, and again, I do wish you the best of luck.

RGMacEsq and 5 other Business Law Specialists are ready to help you

Related Business Law Questions