Federal Circuit disposition — 22-1961

United States Court of Appeals
for the Federal Circuit
______________________
IN RE: GO & ASSOCIATES, LLC,
Appellant
______________________
2022-1961
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
88944728.
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N ONPRECEDENTIAL O PINION I SSUED: November 13, 2023
P RECEDENTIAL O PINION I SSUED: January 22, 2024∗
______________________
P AUL W. K RUSE, Spencer Fane LLP, Nashville, TN, for
appellant. Also represented by K YLE L. ELLIOTT , Kansas
City, MO.
BRADLEY HINSHELWOOD, Appellate Staff, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for appellee Katherine K. Vidal. Also represented by
BRIAN M. B OYNTON, D ANIEL T ENNY ; CHRISTINA J. HIEBER ,
F ARHEENA YASMEEN RASHEED, MARY BETH WALKER , Office
of the Solicitor, United States Patent and Trademark Of-
fice, Alexandria, VA.
______________________
∗ This opinion is being issued as a precedential opin-
ion pursuant to a request by the U.S. Patent and Trade-
mark Office under Fed. Cir. R. 32.1(e).
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IN RE: GO & ASSOCIATES, LLC 2
Before L OURIE, REYNA , and HUGHES , Circuit Judges.
L OURIE, Circuit Judge.
GO & Associates, LLC (“GO”) appeals from a decision
of the United States Trademark Trial and Appeal Board
(“the Board”) affirming the examining attorney’s final re-
fusal to register GO’s applied-for mark: “EVERYBODY VS
RACISM.” In re GO & Assocs., LLC, No. 88944728, 2022
WL 1421542 (T.T.A.B. Apr. 20, 2022) (“Decision”). Because
substantial evidence supports the Board’s conclusion, we
affirm.
BACKGROUND
On June 2, 2020, GO filed an application seeking reg-
istration on the principal register of “EVERYBODY VS
RACISM” in standard characters. It identified the goods
and services as:
Tote bags;
T-shirts, hoodies as clothing, tops as cloth-
ing, bottoms as clothing, and head wear;
and
Promoting public interest and awareness of
the need for racial reconciliation and en-
couraging people to know their neighbor
and then affect change in their own sphere
of influence.
J.A. 32.
In a non-final office action, the examining attorney re-
fused to register the mark because it failed to function as a
source identifier for GO’s goods and services. J.A. 40. Ra-
ther, the examining attorney observed, the mark was “an
informational social, political, religious, or similar kind of
message that merely conveys support of, admiration for, or
affiliation with the ideals conveyed by the message.” Id.
As support for the refusal, the examiner cited dozens of ex-
amples of the mark being used in informational (rather
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IN RE: GO & ASSOCIATES, LLC 3
than source-identifying) ways. Id. For example, the exam-
iner provided evidence that the mark had been used by ref-
erees in the National Basketball Association; in titles of rap
songs, podcasts, church sermons, and YouTube videos; and
on various articles of clothing. See id. at 43–96 (cited evi-
dence).
GO responded by arguing that its uses of the mark
were source-identifying, while those relied upon by the ex-
amining attorney were “merely ornamental third party
uses of EVERYBODY VS RACISM on clothing,” which
could not function as a trademark. Id. at 106. It also ar-
gued that the third-party uses of the mark in speech, rap
songs, podcasts, church sermons, and the like did not ren-
der the mark incapable of functioning as a trademark. Id.
at 108. To support its position, GO submitted search en-
gine optimization evidence, allegedly showing that the
mark was “almost never used or searched” before GO began
using it in May 2020, and that GO’s successful policing of
the mark throughout the summer of 2020 led to “a signifi-
cant drop in searches.” Id. at 106–08.
But the examining attorney was not persuaded and
concluded that competitors’ ornamental uses of the mark
only reinforced the fact that consumers would likely view
the mark “as a sentiment rather than a source.” Id. at 183
(“The evidence showing the wearing of shirts with
‘EVERYBODY VS RACISM’ by NBA referees during their
protest walk out shows that they wore the shirts to convey
meaning, and that meaning was understood by those who
saw the referees.”). The examining attorney also observed
that GO’s search engine evidence showed that public use of
the mark aligned with the general timeline of the “heated
anti-racism protests throughout the nation in the wake of
the George Floyd killing.” Id. That evidence therefore did
little to show that the public perceived the mark as a source
identifier. Because granting GO the right to exclude others
from using the mark to promote racial reconciliation
“would seriously impede the heartfelt need of citizens of the
country to express that everybody should be against
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IN RE: GO & ASSOCIATES, LLC 4
racism,” the examining attorney finally refused registrabil-
ity of the mark. Id.
GO appealed to the Board. Finding that the record as
a whole “show[ed] wide use of the proposed mark in a non-
trademark manner to consistently convey an informa-
tional, anti-racist message to the public,” as opposed to a
source identifier of GO’s goods and services, the Board af-
firmed the examiner’s refusal to register the mark. Deci-
sion at *7, *10.
GO appeals from the Board’s decision. We have juris-
diction under 28 U.S.C. § 1295(a)(4)(B) and 15 U.S.C.
§ 1071(a).
D ISCUSSION
The Lanham Act conditions the registrability of any
mark on its ability to distinguish an applicant’s goods and
services from those of others. See 15 U.S.C. §§ 1052, 1053.
In other words, it is a threshold requirement of registrabil-
ity that the mark “identify and distinguish” the goods and
services of the applicant from those of others, as well as
“indicate the source” of those goods and services. Id.
§ 1127; Jack Daniel’s Props., Inc. v. VIP Prods. LLC,
599 U.S. 140, 146 (2023) (“[A] trademark is not a trade-
mark unless it identifies a product’s source (this is a Nike)
and distinguishes that source from others (not any other
sneaker brand).”); Abitron Austria GmbH v. Hetronic Int’l,
Inc., 600 U.S. 412, 429 (2023) (Jackson, J., concurring) (“It
is clear beyond cavil that what makes a trademark a trade-
mark under the Lanham Act is its source-identifying func-
tion.”).
As we recently observed, “whether a proposed mark is
a source identifier typically arises before us in the context
of whether the proposed mark is descriptive under
15 U.S.C. § 1052(e).” In re Vox Populi Registry Ltd.,
25 F.4th 1348, 1351 (Fed. Cir. 2022) (collecting cases). But
“the source identifier requirement is broader than just
whether a proposed mark is generic or descriptive,” and
typically focuses on how the mark is used in the
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IN RE: GO & ASSOCIATES, LLC 5
marketplace and how it is perceived by consumers. See id.;
see also In re Light, 662 F. App’x 929, 934–35 (Fed. Cir.
2016) (affirming Board’s refusal to register a mark contain-
ing over 570 words arranged in column format because the
“sheer number and visual display” of the words made it
“significantly more difficult” for the public to perceive the
mark as a unitary trademark (internal quotation marks
and citation omitted)); D.C. One Wholesaler, Inc. v. Chien,
120 U.S.P.Q.2d 1710 (T.T.A.B. 2016) (refusing to register
“I ♥ DC” for use on apparel and souvenirs because it “would
be perceived by purchasers and prospective purchasers as
an expression of enthusiasm for the city of Washington,
DC,” as opposed to an indicator of the source of the goods
on which it appeared). If the nature of a proposed mark
would not be perceived by consumers as identifying the
source of a good or service, it is not registrable. See Jack
Daniel’s, 599 U.S. at 145. As relevant here, the PTO en-
forces the source-identifying statutory requirement, in
part, by prohibiting the registrability of what it calls “in-
formational matter.” See TMEP § 1202.04(b) (precluding
from trademark protection “informational matter,” such as
slogans, terms, and phrases used by the public to convey
familiar sentiments, because consumers are unlikely to
“perceive the matter as a trademark or service mark for
any goods and services.”).1
Whether or not a mark functions as a source identifier
is a question of fact that we review for substantial evidence.
Vox Populi, 29 F.4th at 1351–52. A finding is supported by
substantial evidence if a reasonable mind might accept the
evidence as adequate to support the finding. Consol. Edi-
son Co. v. NLRB, 305 U.S. 197, 229 (1938). Applying that
standard to the case before us, we conclude that the Board’s
determination that “EVERYBODY VS RACISM” does not
function as a source identifier for GO’s products (i.e., tote
bags and apparel) or services (i.e., promoting awareness of
1 Throughout its brief, GO refers to this general rule
as the “Informational Matter Doctrine.”
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IN RE: GO & ASSOCIATES, LLC 6
the need for racial reconciliation) was supported by sub-
stantial evidence.
In reaching its conclusion, the Board properly consid-
ered the evidence of record, which included not only the
third-party evidence identified by the examining attorney,
but also GO’s specimens and other evidence of its own use
of the mark. See Decision at *3–4. Based on the totality of
evidence, the Board agreed with the examining attorney
that the third-party uses of the mark “show[] that ‘every-
body vs racism’ is commonly used in an informational and
ornamental manner on clothing items, tote bags, and other
retail items sold by third-parties to convey an anti-racist
sentiment.” Id. at *6. The Board also found that the evi-
dence showed that the mark frequently appeared “in opin-
ion pieces, in music, podcasts, and YouTube videos, and by
organizations (websites) that support efforts to eradicate
racism.” Id. Considering the diversity and breadth of
third-party uses, the Board found that GO’s own specimens
and uses were insufficient to render the mark source-iden-
tifying. Id. at *7 (“As to [GO’s] services, consumers would
perceive EVERYBODY VS RACISM as merely an informa-
tional statement against racism rather than a service
mark.”). And significantly, as the Board observed, GO did
not argue that any of the dozens of third-party uses of
“EVERYBODY VS RACISM” were trademark uses at-
tributable to GO—a finding GO does not challenge on ap-
peal. Id.; cf. In re Nat’l Ass’n to Advance Black Birth, No.
90581377, 2022 WL 4385036, at *6 (T.T.A.B. Aug. 23, 2022)
(“The record indicates that the mark, as used on the speci-
mens, would be associated with Applicant, the National As-
sociation to Advance Black Birth, by itself, even though it
may also be used by third parties.” (emphasis added)).
GO’s challenge on appeal amounts to nothing more
than a disagreement with the weight the Board assigned
to the conflicting evidence. See, e.g., GO Br. at 14 (“[T]he
Board discounted [GO]’s specimens and evidence critical to
understanding a modern consumer’s perception of the
Mark, and instead relied on less convincing and irrelevant
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IN RE: GO & ASSOCIATES, LLC 7
information.”). But the Board properly considered both
GO’s uses and third-party uses when assessing how the
public would likely perceive the mark. And reweighing the
evidence “is not the role of this court.” In re Charger Ven-
tures LLC, 64 F.4th 1375, 1381 (Fed. Cir. 2023).
Contesting this conclusion, GO asserts that “[p]er se re-
fusals based on the Informational Matter Doctrine are un-
constitutional” because they “involve[] content-based
discrimination that is not justified by either a compelling
or substantial government interest.” GO Br. at 8–9 (quot-
ing In re Elster, 26 F.4th 1328, 1331 (Fed. Cir. 2022), cert.
granted sub nom. Vidal v. Elster, 143 S. Ct. 2579 (2023)).
This argument is meritless.
As an initial matter, Elster is inapposite. In that case,
there was no issue as to whether or not the applied-for
mark, “TRUMP TOO SMALL,” functioned as a source iden-
tifier. See id. at 1330. The same is true for the other reg-
istered marks GO cites, such as “MAKE AMERICA
GREAT AGAIN,” Registration No. 5,020,556; “The Slants,”
Matal v. Tam, 582 U.S. 218 (2017); and “FUCT,” Iancu v.
Brunetti, 139 S. Ct. 2294 (2019).
What is more, however, is that GO’s constitutional ar-
gument is based on a faulty premise: that the Patent and
Trademark Office’s (“PTO”) application of the so-called “In-
formational Matter Doctrine” results in the per se refusal
of any mark that contains informational matter, regardless
whether or not consumers perceive the mark as source-
identifying. That is not true. Indeed, one can immediately
envision many marks, such as GO’s own example, MAKE
AMERICA GREAT AGAIN, that contain informational
matter (e.g., widely used slogans), but nevertheless func-
tion as source identifiers. Consider, for example, Nike’s
“JUST DO IT,” De Beers’s “A DIAMOND IS FOREVER,”
or Verizon’s “CAN YOU HEAR ME NOW?” The fundamen-
tal purpose of a trademark or service mark is to identify
and distinguish the source of a particular good or service.
If the PTO were to allow the registration of marks that are
used by the public in such a way that they cannot be
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IN RE: GO & ASSOCIATES, LLC 8
attributed to a single source, the purpose of trademark law
would be undermined to the detriment of the public who
would be no longer free to express common sentiments
without the threat of “paying a licensing fee to someone
who sees an opportunity to co-opt a political message.” De-
cision at *10 (citing J.A. 298); cf. Jack Daniel’s, 599 U.S. at
157 (deeming it the “cardinal sin” of the Lanham Act to un-
dermine the source-identifying function of a trademark).
Contrary to GO’s position, nothing in the Lanham Act or
the PTO’s so-called “Informational Matter Doctrine” pro-
hibits registration of a mark containing informational mat-
ter, so long as the mark also functions to identify a single
commercial source. On this record, “EVERYBODY VS
RACISM” fails to meet that requirement. We therefore re-
ject GO’s constitutional challenge.
We have considered GO’s remaining arguments, and
none has merit. Accordingly, because we find that substan-
tial evidence supports the Board’s conclusion that the pub-
lic is unlikely to associate the mark “EVERYBODY VS
RACISM” as a source identifier of GO’s goods and services,
we affirm.
CONCLUSION
For the foregoing reasons, we affirm the Board’s re-
fusal to register “EVERYBODY VS RACISM.”
AFFIRMED
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