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ADventures in Law

An Endorsement for the FAQs on the Consumer Reviews and Testimonials Rule

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As the holiday season is now upon us, one may wonder: Are general sayings about Christmas, Hanukkah, and other holidays protectible as trademarks? Or are these sayings free for anyone to use on things like sweatshirts and coffee mugs? The answer is, of course, the classic, “It depends.” But a review of singer Mariah Carey’s recent trademark filings for the phrases QUEEN OF CHRISTMAS and PRINCESS CHRISTMAS shows that not everyone agrees a single person or entity should have exclusive rights to such terms. The U.S. Patent and Trademark Office (“USPTO”) also considers many of these sayings to be non-registrable.

Mariah Carey’s company Lotion LLC most recently tried to trademark QUEEN OF CHRISTMAS (Serial No. 90571927) and PRINCESS CHRISTMAS (Serial No. 90571957) for various goods, including fragrances, face masks, jewelry, backpacks, pet goods, glassware, mugs, clothing, Christmas decorations, toys, cookies, chocolate, coffee, tea, alcohol, musical recordings, streaming and entertainment services, and online retail store services. Musician Elizabeth Chan and her company, Battery Park Media LLC d/b/a Merry Bright Music Enterprises, took offense to those claims of exclusive ownership and filed oppositions. As a full-time Christmas singer-songwriter, Chan also refers to herself as the “Queen of Christmas” and for years has referred to her daughter as the “Princess of Christmas.” She thus claimed that Carey does not have exclusive trademark rights to the titles. Interestingly, though, Carey also sought to register CHRISTMAS PRINCESS (Serial No. 90483483) for face masks, jewelry, backpacks, pet goods, beverageware, mugs, toys, musical recordings, and entertainment services, which Chan did not oppose, and the USPTO has allowed this application to proceed.

The USPTO currently rejects trademark filings that fail to function as a trademark where they comprise sayings that are commonplace, merely informational, and/or widely used messages and thus do not convey a single source of origin to consumers. Some examples include:
<ul>
 	<li>FRIENDSMAS – Failure to function as a mark because “the applied-for mark is a commonplace term widely used by a variety of sources that merely conveys an ordinary, familiar, well-recognized concept or sentiment.”</li>
 	<li>COVID CHRISTMAS – Refused as a commonplace message.</li>
 	<li>MERRY COVID CHRISTMAS – Failure to function as a mark because it is a widely used message.</li>
 	<li>HAPPY NEW YEAR – Failure to function as a mark because it “is a common sentiment usually conveyed when wishing someone happiness in the new year.”</li>
 	<li>HAPPY HANUKKAH – Refused because the mark “would be perceived as merely informational matter and not as a trademark because of the widespread use of similar phrases by others.”</li>
</ul>
In sum, common sayings about the holidays and who might be “Queen of Christmas” often are not available for any one person to register to the exclusion of others. Indeed, as Chan argued, “Christmas is big enough for more than one ‘Queen.’”

Holiday Sayings – Who Owns Them?

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