Test Your TTAB Judge-Ability: Is "ONCE A MARINE, ALWAYS A MARINE" on Clothing a Trademark, Or Merely Informational?
Eagle Crest applied to register the mark ONCE A MARINE, ALWAYS A MARINE for various clothing items. The Examining Attorney refused registration, maintaining that the phrase, as it appears on the specimens of use (see photos below), would be perceived as merely informational and not as a trademark. Applicant appealed. How would you decide? In re Eagle Crest, Inc., 96 USPQ2d 1227 (TTAB 2010) [precedential].
The Board began by observing that "not every designation adopted with the intention that it performs as a trademark and even labeled as a trademark necessarily accomplishes that purpose." Some designations are "inherently incapable of functioning as trademarks." The crucial issue is public perception.
Slogans and other terms that are considered to be merely informational in nature, or to be common laudatory phrases or statements that would ordinarily be used in business or in the particular trade or industry, are not registrable.
Here, Eagle Crest admitted that the phrase ONCE A MARINE, ALWAYS A MARINE is a "motto associated with and used by and about marines by them and their admirers." Said the Board: "There is no dispute that the phrase ... is an old and familiar Marine expression, and as such it is the type of expression that should remain free for all to use." In fact, the evidence showed that it is commonly used by others as informational and ornamental matter on t-shirts and other items. "Applicant is not entitled to appropriate the slogan to itself and thereby attempt to prevent competitors from using it to promote the sale of their own clothing."
Applicant's manner of use of the slogan likely reinforces the perception of ONCE A MARINE, ALWAYS A MARINE as merely informational. Applicant's website offers this slogan along with eight other military or patriotic messages that the consumer may choose for imprinting on a clothing item. Clearly, consumers want to display their support for the Marines.
Eagle Crest asserted that other common Marine expressions, such as "HOOAH!" and "GUNG-HO!" are "trademarked." The Board perceptively remarked, "It is not clear what applicant means by 'trademarked," and it then pointed out that the other registrations for mottos or slogans are irrelevant to the case at hand.
And so, the Board affirmed the refusal.
TTABlog comment: Hooray for the Board in pointing out that "trademark" is not a verb. But I wonder about the Board's statement that ONCE A MARINE, ALWAYS A MARINE could never be a trademark. Does it depend on usage? What if the slogan appeared only on the sewn-in label of the garment and was not viewable when the garment is worn? Would it be just informational in that case? Or is the slogan unregistrable anyway, because such a registration would hinder use by others.
If the latter, where do you draw the line between unregistrable common phrases and registrable ones?
Text Copyright John L. Welch 2010.