In preparation for the Super Bowl, a trademark story with a football theme:
We will not soon forget the moment Buffalo Bills player Damar Hamlin suffered cardiac arrest on the field during the January 2, 2023, Monday Night Football game against the Cincinnati Bengals or the tense first few days of his recovery.
On January 5, reports on Hamlin’s condition said that when Hamlin regained consciousness, the first thing he asked doctors was, “Did we win?” That seemingly small question resonated with Americans on many levels – Hamlin’s commitment to the game many love on full display.
Prior to January 2, Hamlin had created a charity (Chasing Ms), which sponsored toy drives. Fans who wanted to show their support for Hamlin flooded Chasing Ms with donations. On January 6, Hamlin filed a trademark application to register the phrase DID WE WIN for a variety of goods and services such as downloadable posters, clothing, and motivational speaking. Currently, t-shirts emblazoned with the phrase are being sold by Hamlin’s nonprofit Chasing M’s.
Hamlin certainly isn’t the first person to attempt to register a trademark that arises from a spontaneous statement in the public eye. These phrases have mixed results at the USPTO particularly if they are only informational or inspirational phrases and fail to identify the source of goods or services.
For example, the USPTO refused to register the phrase “Nevertheless, she persisted,” because it failed to function as a trademark, but Lizzo successfully argued that the 100% THAT BITCH mark for clothing identified the Grammy-award winning artist as the source of the goods and thus functioned as a mark. Lizzo was able to establish that the phrase was not widely used before she popularized it.
Whether Hamlin will follow in Lizzo’s footsteps will depend on whether the USPTO determines the phrase will serves as only as an inspirational message or if it identifies Hamlin as the source of the goods and services.
Unfortunately, opportunistic third parties may stand in the way of Hamlin’s success: on January 5, 2023 (one day before Hamlin), Jetfuel Ventures, LLC, also filed an application for DID WE WIN? for t-shirts. Jetfuel appears to be a sports and entertainment branding agency. It’s not clear whether it has any connection to Hamlin, but because its application was filed first, it may at least temporarily block Hamlin’s own application.
Will the USPTO refuse the Jetfuel application for false association with Hamlin and/or will USPTO see Did We Win as a source-identifier for Hamlin