More than 600 applications have been filed with the U.S. Patent and Trademark Office seeking to register COVID-related marks. And the number of applications continues to grow, with many appearing to be “opportunistic” trademark applications. One, for example, seeks to register “COVID-19 VIRUS FREE GUARANTEED” for apparel and other consumer goods. Another seeks to register “COVIDFREE” for antibacterial goods.
Most of these opportunistic applications won’t be approved because, unlike cybersquatting, registration requires actual use or a bona fide intent to use the mark. Most applicants will be unable to establish the requisite intent or simply will never get around to making actual use in commerce. However, for those opportunistic registrants, or potential “trademark trolls,” who have no intent to lawfully use the trademark, the current pandemic presents an occasion to financially exploit these marks. By seeking federal rights ahead of others, the registrant can stand in the way of legitimate businesses making use of these marks. This situation presents an unavoidable business hazard to entities using COVID-related phrases or expressions. With some advance precautions and a nimble response, exposure can often be minimized. After all, the threat posed by most of these trademark trolls is minimal.
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