The holiday season is upon us, and, for many, that means holiday shopping. Every year, Black Friday and Cyber Monday bring in billions of dollars for many retailers, large and small. Needless to say, the terms BLACK FRIDAY and CYBER MONDAY could wield substantial marketing power as trademarks. Thus, we were curious to see whether anyone has attempted to federally register these terms as trademarks. As a result, we learned some interesting insights.
BLACK FRIDAY trademark
First and foremost, under the U.S. law, slogans or terms that merely convey an informational message cannot function as trademarks. In our previous posts, we covered Lebron James’s failed quest to register TACO TUESDAY. In that situation, the trademark examiner blocked Lebron’s attempt because TACO TUESDAY is a commonly used slogan. For this reason, we expected a sea of rejected BLACK FRIDAY trademark applications. To our surprise, we found several active trademark registrations for this term.
BLACK FRIDAY beer
Lakefront Brewery owns multiple registrations for BLACK FRIDAY beer.
Initially, Miller Brewing Company applied for this trademark for beer. Although the USPTO allowed Miller’s application, Miller did not go through with its plans to actually launch BLACK FRIDAY beer. As a result, Miller’s application went abandoned, and Lakefront Brewery subsequently captured this trademark.
BLACK FRIDAY for retail services is merely descriptive
Next, we noticed that multiple parties attempted to register variants of the term BLACK FRIDAY for retail services. In several cases, the USPTO rejected such applications as merely descriptive because the term “Black Friday” describes a well-known shopping day. We found this approach quite interesting. Although the term “Black Friday” is certainly a well-known phrase, neither the term “Black” nor “Friday” describes retail services. If our client received such rejection, we would fight it tooth-and-nail.
BLACK FRIDAY fails to function as a trademark
Finally, as expected, we found many rejected trademark applications due to the term “BLACK FRIDAY” being a well-known slogan, unable to function as a source identifier. Here is an example of such rejection:
“The attached evidence from various internet articles and advertisements shows that this wording is commonly used to refer to sales events and deals held on the Friday after Thanksgiving, commonly referred to as BLACK FRIDAY. Because consumers are accustomed to seeing this slogan or term commonly used in everyday speech by many different sources, the public will not perceive the term or slogan as a trademark or service mark that identifies the source of applicant’s services but rather only as conveying an informational message.”
USPTO rejection of a trademark application for BLACK FRIDAY.
The above rejection reflects an accurate statement of the U.S. trademark law. Because BLACK FRIDAY is a commonly-used slogan, no single party can own this term, at least for retail services.
CYBER MONDAY trademark
Interestingly, only seven trademark applications have ever been filed for variants of “CYBER MONDAY.” Three of these registrations are a clever play on words. Firstly, Build-A-Bear owns a trademark registration for CYBEAR MONDAY. Secondly, a lingerie apparel company, registered the trademark CYBRA MONDAY. Finally, Bed Bath & Beyond parent company owns a trademark registration for BED BATH & CYBER MONDAY. Although, no one has tried to register the trademark CYBER MONDAY, the USTPO would likely shut down such attempt for being directed to a well-known slogan.
There are several active registrations for BLACK FRIDAY trademark for beer, cigars, and video games. However, the USPTO rejected multiple BLACK FRIDAY trademark applications for retail services. Generally, under the U.S. law, well-known phrases and slogans cannot function as trademarks.
There are three trademark registrations for play-on-words for CYBER MONDAY. They include, CYBEAR MONDAY, CYBRA MONDAY, and BED BATH & CYBER MONDAY. However, generally, in the U.S., well-known phrases and slogans cannot function as trademarks.
