What is the "information matter doctrine" for trademarks?

The "information matter doctrine" in trademark law refers to a principle where a mark is denied registration if deemed merely informational. This doctrine is based on the idea that certain phrases, terms, or expressions that convey an informative message rather than indicate the source of goods or services are not eligible for trademark protection. The rationale is that such phrases should remain available for public use and not be monopolized by any one entity. The doctrine seeks to balance the need for businesses to protect their brand identity with the public interest in keeping commonly used or descriptive phrases free for all to use.

In the recent precedential opinion In re GO & Associates, the Federal Circuit upheld the USPTO's refusal to register the mark "EVERYBODY VS RACISM." The USPTO and Trademark Trial and Appeal Board (TTAB) concluded that the mark was used in an informational manner and did not function as a source identifier. This decision was based on evidence showing widespread third-party use of the phrase in various contexts, reinforcing its perception as an informational message rather than a brand identifier. The court affirmed this decision, agreeing that the mark did not meet the requirements for trademark registration as it did not serve to identify and distinguish the source's goods and services. The court rejected a constitutional challenge, emphasizing that a mark must function as a source identifier to be registrable.

It is important to note that the court emphasized that the doctrine does not operate as per se bar against informational content. Instead, if an informational mark also functions as a source identifier, then that informational mark remains eligible for federal registration. 

Accordingly, an applicant can register a mark containing political and social justice messaging so long as the mark also sufficiently functions to identify a commercial source. However, the burden will be on the applicant of such a mark to overcome what appears to be a presumption against registrability.

Need to register a mark containing informational content?

An applicant seeking to register for a mark containing informational content, such as a political or social justice message, will likely need to overcome a rejection based on the information matter doctrine.

To discuss responding to an information-based rejection of your mark, contact TCP Law at info@tcplawfirm.com or John Laurence by phone at 917-612-1059.