BOSTON STRONG Fails to Function as a Service Mark for Volley Ball Entertainment, Says TTAB

The Board upheld a failure-to-function refusal of the proposed mark BOSTON STRONG for, inter alia, "Entertainment services in the nature of professional athletes competing in volleyball," deeming it to be a commonplace term rather than a source indicator. The Board found that BOSTON STRONG "conveys a common message of support for the city of Boston and ... is incapable of functioning as a mark." In re Franklin Sports, Inc., Serial No. 98326109 (August 12, 2025) [not precedential] (Opinion by Judge Elizabeth A. Dunn).

On April 15, 2013, at the finish line of the Boston Marathon, explosives killed three and injured 264 people and resulted in a four-day manhunt for the bombers. A May 12, 2013, a Boston Globe article titled “Boston Strong, the phrase that rallied a city” described the speed with which the term BOSTON STRONG spread as a response to the bombing. Within hours of the bombing, the term BOSTON STRONG appeared all over the city. Moreover, even in recent years "uses of BOSTON STRONG" remain in the public eye."

[The] evidence demonstrates that the term BOSTON STRONG remains a common message of support for the city of Boston. In addition, the evidence shows the association of BOSTON STRONG with sporting events, which initiated with the bombing occurring at and during a famous Boston sporting event [opening day for the Red Sox], and continues with annual remembrance by the Red Sox baseball team, Marathon competitors, basketball and lacrosse tournaments, and special Olympic events.

The evidence also showed use of BOSTON STRONG on a variety of products from multiple sources: jewelry, stickers, keychains, masks, mugs, and clothing items including hats, t-shirts, jackets, and hoodies. These items "'reflect use of the phrase in a manner that will only be perceived by consumers as conveying ‘support for, or affiliation or affinity with the [city of Boston],’ a well-recognized sentiment."

Applicant Franklin Sports (located in Stoughton, Massachusetts) argued that the failure-to-function refusal was premature, since this was an intent-to-use application and a specimen of use had not been submitted. The Board was unmoved, quoting TMEP Section 1202.04 (See Vox Populi, 2020 TTAB LEXIS 465, *23 (affirming failure-to-function refusal against application class with an intent-to-use filing basis on the basis of third-party use evidence), aff’d, 25 F.4th 1348 (Fed. Cir. 2022)):

Although the failure-to-function refusal is typically a specimen-based refusal, a refusal must be issued, regardless of the filing basis, if the evidence supports a determination that a proposed mark is merely informational and thus would not be perceived as an indicator of source.

Franklin also argued that common messages may serve a dual function as a source indicator, noting a third-party registration for the mark CHICAGO FIRE for soccer team services. The Board pointed out that, although the Chicago Fire was an historical event, there was no evidence that “Chicago Fire” is a common message.

Finally, Franklin asserted that media coverage of its volleyball team would transform BOSTON STRONG into a registrable team name "just as they would refer to the BOSTON CELTICS or the BOSTON BRUINS." The Board disagreed, finding that the argument was "entirely speculative" and failed to recognize that the Board "must determine the current public perception of the term BOSTON STRONG."

And so, the Board affirmed the refusal.

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TTABlogger comment: I think the Board got this one wrong. Why would consumers see BOSTON STRONG as a trademark/name for a volleyball team? Expect an appeal to the CAFC.

PS: I lived a few blocks from the Marathon finish line, but I was at the airport when the bombing occurred. It was one of those moments, like learning of the JFK, RFK, and MLK assassinations, that is seared in my memory.

Text Copyright John L. Welch 2025.