By Josh Escovedo
IP Law Blog
If you’re plugged into the digital world and its constantly emerging meme trends, you’ve probably encountered various “OK, Boomer” memes by now. If you’re unfamiliar with the trend, here is a brief synopsis. OK, Boomer is a phrase that is used in response to members of the baby-boomer generation who have, through their conduct, demonstrated that they are out of touch. For example, when a member of the baby-boomer generation harps on a member of the millennial generation or Generation Z for allegedly lacking the work ethic of the boomer generation, one might respond, “OK, Boomer.” There are various other situations where the phrase could be used, but as you can see, it is either a trendy insult, or an ageist slur, depending on your point of view.
Regardless, the phrase has gone viral since first appearing on the TikTok app a few weeks ago. Now it’s everywhere. It’s on Instagram, Facebook, and various other platforms. It was even used during a session of New Zealand’s Parliament when an older member heckled a 25-year-old over her policy on climate change. With such widespread popularity and trendiness, it’s not surprising that one of the major producers of television, Fox Media, has filed an application seeking to register OK, BOOMER for use in conjunction with a reality, comedy, or game show. Fox is joined by various other parties who have filed applications to use OK, BOOMER in conjunction with goods, including without limitation, clothing, stickers, and decals.
However, there is some skepticism among trademark experts as to whether these applications will result in trademark registration. D.C.-based trademark attorney Josh Gerben has tweeted about the matter and provided his opinion on the likelihood of registration to CNN. Mr. Gerben told CNN that the USPTO will likely “deny all of these applications because OK BOOMER has become a ‘widely used message.’” Mr. Gerben further opined that, “A trademark registration will not issue in a phrase that is commonly used to convey a social or political message. . . . because such a ‘viral’ phrase is incapable of identifying the source of a product or service—which is what trademarks must do to be capable of registration.” Isn’t it ironic that the very reason that Fox Media and other parties want to register the mark is also the same reason they are probably unable to do so?
Perhaps these parties will move forward with their intended use of OK, BOOMER, and then return to the USPTO claiming that, although their mark was initially incapable of designating its source or origin, the mark has now acquired secondary meaning through use in commerce. In other words, by using the mark in commerce in conjunction with a television show, consumers have come to associate the mark, as applied to television shows, with Fox’s show. That would seemingly get around the initial refusal that trademark experts such as Mr. Gerben are anticipating, but we won’t know until it happens.
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