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December 22, 2022

All I Want for Christmas is....a Trademark?

This holiday season when you are shopping for gifts – you are relying on trademarks for these goods and services.

This holiday season when you are shopping for gifts – you are relying on trademarks for these goods and services.

All someone out there wants for Christmas is … a trademark?!   While you may not think that you know anyone who wants a trademark, you may be very glad that U.S. law provides for them. 

Trademarks are a type of intellectual property (IP) protection.  The ABA Intellectual Property Law (IPL) Section advocates for strong trademark rights and a well-functioning trademark system.  Trademarks serve an important goal – namely, helping the public and consumers identify the source of a product; and, accordingly, its origin helps indicate a level of quality and safety.

This holiday season when you are shopping for gifts online, looking at travel getaway options, or watching your favorite movies – you are relying on the trademarks for these goods and services to guarantee the true, original source, and the attendant quality.  For example, when a consumer purchases an article of clothing, a toy, or even baby formula, the brand name protected by a trademark helps guarantee that it is authentic and gives assurances of safety (e.g., it will not cause a health or safety issue or be a defective counterfeit).

In recent years, the ABA IPL Section has supported legislation that would help small business and brand owners police online market places from selling counterfeit or other fake products online, including bills such as the SHOP SAFE Act (H.R. 3429) and the INFORM Consumers Act (S. 936).  Likewise, according to a 2022 Organization for Economic Cooperation and Development study, the global value of trade in fakes in 2019 was estimated to be $464 billion, which amounted to 16% of global trade in counterfeit goods overall the same year. 

Counterfeiting has been a major problem for decades, but it has significantly worsened with the explosive growth of e-commerce in recent years. Counterfeiters and other bad actors have taken advantage of online platforms to expand their reach, as has been demonstrated when bad actors abused such platforms to peddle fake COVID-19 tests and ineffective personal protective equipment. Counterfeit products clearly harm consumers, support criminal activity, threaten manufacturing investment, and put American jobs at risk; in fact, it has been estimated that counterfeiting cost the U.S. economy nearly $131 billion and more than 325,000 jobs in 2019 alone.

In reality, every legitimate business, website, product, service, and movie has a trademark.  These legal rights are important all year long.  Some of the most famous holiday trademarks include:

  • “Hallmark Gold Crown” was registered as a trademark on Sept. 15, 2009.
  • “A Christmas Story,” while originally a movie, it was registered on June 26, 2018 for use on clothing, such as tee shirts.
  • “Dick Clark’s New Year’s Rockin’ Eve,” while the popular TV broadcast originated in 1972, the title was registered as a trademark on June 30, 2009.
  • “Elf on a Shelf,” the infamous book and mischievous toy, was first registered as a trademark on Nov. 18, 2008.
  • “Mensch on a Bench” is a popular Chanukah decoration created by Neal Hoffman, who received a USPTO trademark registration on Jan 28, 2014.   

Are you wondering “what you should do?” or what to give this holiday season?  Maybe consider checking out one of the Rock and Roll Hall of Fame® newest inductee’s, Dolly Parton, greatest hits for inspiration?  Parton may not be a trademark lawyer, but smartly has more than 60 U.S. trademarks and pending applications for her name and phrases like “WWDD What would Dolly Do?”

While singer Mariah Carey’s trademark application for the “Queen of Christmas” was rejected by the U.S. Patent and Trademark Office earlier this year, you can be a King or Queen for the holiday season by responsibly shopping from credible e-commerce platforms, recognizing the wonderful world of trademarks all around us, and appreciating what that means for consumers and the economy all year long. 

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