In Mayweather Promotions, Applicant had sought to register the slogan “PAST PRESENT FUTURE” for t-shirts. Mayweather promotions argued that the relevant consumers were sports fans who had seen the slogan used for more than a decade in connection with the fighter Floyd Mayweather. TTAB rejected this argument, citing lack of evidentiary basis. Applicant also argued that the slogan was more than “merely informational” – an argument that failed to land as the Examining attorney had not rejected the application on this basis. Rather, the Examining attorney had argued that the mark conveyed the message instead of denoting a source. Finally, Applicant argued that other similar sports-related slogans had been registered, thereby providing precedent for the registration of the slogan at issue. In this regard, TTAB issued the painful reminder that “prior decisions and actions of other trademark examining attorneys in registering other marks have little evidentiary value and are not binding” on the Trademark Office or TTAB. And with that the dream of consistency is knocked out, again.
The Applicant in In re Texas with Love fared no better in their effort to register TEXAS LOVE for hats and t-shirts. The Examining attorney rejected the application for failing to function as a mark, instead finding that the slogan was a commonplace sentiment used to indicate affinity for the State of Texas. TTAB agreed and held that “When confronted with so many similar uses of a term to convey essentially the same concept or sentiment, consumers will perceive the term as a common message rather than a source identifier.” Applicant then presented an interesting twist on Mayweather’s plea for consistent treatment. Specifically, Applicant argued that the USPTO had violated the Equal Protection Clause of the US Constitution in denying their application, as the USPTO had approved identical marks for other states, e.g., FLORIDA LOVE. Applicant argued that the registration of these identical applications was proof that the USPTO treated the citizens of Texas differently than the citizens of, e.g., Florida, in “contextually identical” situations. TTAB rejected this argument as lacking both legal and factual basis.