Trends in 2(c) refusals

For today’s blog post, we’ll take a look at 2(c) refusals. Section 2(c) of the Lanham Act provides that registration should be barred where a mark:

Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.

Looking at just US-based applicants, 2(c) refusals apply in about 2% of outgoing Office Actions. Still, given the large numbers of applications in 2021, that’s almost 4,000 2(c) refusals to date. Roughly 100 of those are for Presidentially-related marks, in a roughly even mix of Biden-Harris-related and Trump-related filings, and a smattering of Obama-related ones still percolating around from the especially stubborn. As a group, these have to be some of the lowest-quality applications that the USPTO has to slog through. Most of these arguably don’t function as marks anyway and/or would get refused on “failure to function” grounds or under 2(a) anyway, even if 2(c) was not a part of the statute.

That still leaves us with quite a number of 2(c) refusals. We reviewed all of them, and roughly 70% are “traditional” sorts of 2(c) refusals — the actual name of or a mark incorporating the actual name of a person (BROCK LESNAR or GLORIA SERVICES or GILLIE CHESTER’S NASHVILLE HOT!), or their name-like pseudonym or nickname (ZØ MARIE or STEWIE). A few are a bit further afield from being name-like, like PRINCE OF BLUE or ALKALINE VEGGIE MOMMIE. (Occasionally, the Examiners have to be careful about their phrasing to avoid theological discussions about whether 2(c) should apply to IAMGAWD, a DJ.) Refusals based on the picture element alone are pretty uncommon, but do happen occasionally, especially for more lifelike portraits where a face is more clearly identifiable, as in this application for LATINX POP LAB, where the Examiner did a Google search for the applicant, noted the likeness, and asked for a consent statement.

Drawing: 90153883

Plenty of marks generate 2(c) inquiries where the Examiner just can’t tell, like TALDE, or that sound name-like but the applicant says do not identify a specific living individual, like LINGLEE.

Class 41 entertainment-related content (live events, etc.) and associated goods like musical recordings, etc. are far more represented in 2(c) refusals than the general application pool. Over one quarter of 2(c) refusals are in Class 41.

If you ever need to research 2(c) refusals or effective responses, you can use TM TKO’s Office Action research to dive deep into the issue, and find effective responses on similar facts, or that have convinced your Examiner, or both!

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s