Trademarks for Entrepreneurs

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Girlboss Update

GIRLBOSS’s attorney raises some interesting points to overcome USPTO’s initial “failure to function” refusal:

  • the owner, Sophia Amaruso, already owns several trademarks for the term; and
  • she coined the phrase (unlike “I’m kind of a big deal” which was already in widespread use before the movie).

Still, I saw GIRLBOSS all over the marketplace before I’d ever heard of the applicant, and doubt consumers seeing it on a shirt or wall poster think they are buying from her.

From a “freedom in the marketplace” standpoint, it seems like it should be available for those who just want to identify themselves as a “girlboss” whether or not they endorse her per se.

Besides, having it spread wider in the novelty marketplace can make her other businesses stronger through increasing brand name recognition (see Malcolm Gladwell’s The Tipping Point: How Little Things Can Make a Big Difference).

Makers can learn a lesson from this saga: beware of building a brand on an inspiring message alone. Suppose the mark was instead “Girlboss by Sophia Amaruso”? Buyers who want to be part of what she’s doing would gladly pay to do so. And others who simply identify with the feminist rally cry that “girlboss” embodies could still find a gazillion novelty products to express their enthusiasm for the message.

What do you think? (I don’t use it on any of my products, BTW. Just an interested bystander.) 

I’m curious how USPTO will rule on this.

UPDATE (4/3/2021): Uncommon James and Girlboss Holdings, Inc. are negotiating a settlement over the GIRL BOSS trademark. See the records at TTAB. Which makes me want to have them both over for tea, along with the fine folks at TTAB (who apparently don’t buy novelty products except for souvenirs), to explain how the average consumer perceives this “trademark” when displayed as slogan for earrings or on T-shirts. If only it wasn’t terribly rude to roll one’s eyes.

Don’t be offended Y’all.

You know I’m just pointing out the obvious truth.

And only ’cause I love you… and my country… and creative freedom… and legitimate capitalism.

I’ve said it before and I’ll say it again: until the “big players” stop filing all these frivolous (non-source-indicating!) trademarks (and until USPTO stops rubber-stamping applications without giving serious consideration to whether the term functions as a source indicator for the indicated goods and services), one can ONLY expect a boatload of frivolous trademark applications from the hundreds of thousands of creatives on Amazon and Etsy and similar platforms.

Many of these frivolous trademark applications will continue to be granted. The majority will be abandoned when the novelty slogan’s popularity dies down. Meanwhile, USPTO’s expected revenue from trademark maintenance fees will fall increasingly farther behind expectations.

What’s the result?

  • Competition is chilled
  • Small businesses are harmed
  • USPTO’s budget is in the toilet

USPTO’s attempts to balance their budget will all be in vain until the bias toward faulty registration is addressed, pronto. As in, yesterday.

What can you do?

  • Share this site with anyone and everyone who might be interested in solving the current crisis.
  • Tell creatives and other small business owners about it so they can learn how to defend themselves from frivolous trademarks via the trademark Letter of Protest.
  • Tell trademark attorneys so the honest ones can refuse to file frivolous trademarks, and learn how to file an effective trademark Letter of Protest against them.

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