Can you use AMERICA in your Trademark?

Happy Birthday, America!

In Trademarksby Stacey Kalamaras

Can you use AMERICA in your trademark?

Can you use the word “America” in your trademark? Well, the short answer is yes, but you may need secondary meaning. In honor of the Fourth of July, we thought we would post about the trademark rules regarding using AMERICA and AMERICAN in trademarks. When the word AMERICA or AMERICAN appears in a trademark, the mark will likely be refused as either descriptive or laudatory, depending on the use of the mark. If you are making a claim that your product or service is the “BEST IN AMERICA” then the use of AMERICA in that instance is laudatory and may be incapable of functioning as a trademark. Even if you can prove that your mark has acquired distinctiveness, consider the narrow scope of protection your mark will enjoy. Consider the phrase AMERICA’S FAVORITE.  We found 104 existing registrations containing the phrase for various goods and services.  There are eight registrations for the precise phrase AMERICA’S FAVORITE with no additional words.  For each of those marks that do not contain any additional stylization or design, each applicant had to show secondary meaning in order to secure a registration on the Principal Register.

Alternatively, if you intend to use AMERICA as the name of your product, for instance AMERICAN WIDGETS, where it denotes the country of origin of the goods or services, then AMERICAN services a primary geographic and if the other words in the mark are merely descriptive, the mark will similarly be refused registration on the Principal Register absent a showing of secondary meaning.

So today as we celebrate America’s birthday, consider carefully before you adopt a trademark that your product or service is, in fact, America’s favorite or originates in America.  We are always here in help.  Happy Fourth of July, everyone!