Brands Respond to COVID-19

Many years ago, Mr. Rogers bestowed upon his audience some sage advice given to him by his mother after he would see scary things in the news. His mother told him “look for the helpers. You will always find people who are helping.” In these challenging times, certain brands have done precisely that – helped.

The value of a trademark is in its goodwill, which is measured by the reputation and integrity that consumers associate with the mark. Calling upon that same goodwill, over the last few weeks, companies such as McDonald’s and Coca-Cola – whose marks have garnered significant amounts of goodwill over the years – used their iconic brand imagery to promote social distancing, a practice that is of critical importance in stopping the spread of COVID-19. For example, in certain parts of the world, McDonald’s modified its signature golden arches as follows:

Coca-Cola also promoted social distancing by modifying its famous logo on the massive digital billboard located in Times Square as follows:

Each year, brand owners spend incredible amounts of money in advertising and marketing campaigns that are designed to generate brand awareness among consumers and develop goodwill. While brands typically look to that goodwill to drive sales, it is refreshing, in these uncertain times, to see that some brands have found a public service use for that – to promote a critical precaution that we must take to weather this pandemic and, perhaps, save lives.

With the outbreak of this pandemic, there has been a marked increase in the number of COVID-19 related trademark filings. A search of the United States Patent and Trademark Office (“USPTO”) database demonstrates that, since the onset of this crisis, there have been at least: (i) 15 trademark applications filed for marks that feature some iteration of the phrase SOCIAL DISTANCING; (ii) 29 trademark applications seeking to register marks that feature the word CORONAVIRUS; and (iii) 24 trademark applications seeking to register marks that feature the term COVID-19.

Unfortunately, but not surprisingly, Mr. Rogers would not look to some of these trademark applicants to “find people who are helping.” Why? Because it is apparent that some of these applicants are seeking only to capitalize on this global pandemic. For example, it is a fundamental condition to registration of a mark that an applicant identify the goods or services that will be, or already are, connected to the mark. One of these trademark applicants was not even sure how it planned on using its mark – just that it wanted to “leverage” this crisis in some unidentified medium or format. In it application to the USPTO, the applicant stated: “[a]s of right now I have not fully determined where this term will be marketed; could be leveraged on any social media site, t-shirts; ad campaigns, etc.” (emphasis added). Is this applicant interested in building a brand through its trademark or capitalizing on the crisis?

The answer to this question is more readily apparent with respect to the applicant seeking to register the following, to say the least, distasteful logo:

This logo probably would not be refused registration based on its offensive nature alone. The Supreme Court in Iancu v. Brunetti applied the First Amendment to reject any attempt to refuse registration of an offensive mark. But that does not mean that seeking to exploit the trademark system to capitalize on tragedy should not be exposed and, where appropriate, condemned. And that is what a (maybe large) segment of consumers just may do – socially distance themselves and their wallets from these marks.