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A Well-Recognized Sentiment Attains More Memorable Status
February 14, 2023
On appeal to the Trademark Trial and Appeal Board, the entertainer Lizzo has successfully registered the trademark “100% THAT BITCH.” Once upon a time the mark would have been rejected as scandalous, but the Supreme Court called such rejections unconstitutional in 2019, when it registered the trademark FUCT. In Lizzo’s case, the Trademark Examining Attorney had refused registration of the phrase, based on his opinion that it was a common expression used to express a well-recognized sentiment. Another issue was that Lizzo didn’t invent the phrase, she just popularized it in her song Truth Hurts (“I just took a DNA test, turns out I’m 100% that bitch”), but the TTAB further found that trademark law is not designed to reward invention or authorship, but is a market-function tool that focuses on consumer perception. The evidence says that ordinary consumers associate the mark with Lizzo, who transformed the “lesser known phrase to more memorable status.”
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