United States: Branding Social Movements: Why Attempts To Trademark #Metoo, Black Lives Matter, And Other Movements Are Likely To Fail And Could Harm Core Brands

Last Updated: March 7 2018
Article by Lisa Greenwald-Swire

On October 20, 2017, Hard Candy LLC applied to register #METOO as a trademark for cosmetics and fragrances. The application was likely to be rejected. As the hashtag for a social movement, #METOO does not function as a trademark. However, Hard Candy voluntarily abandoned the application before it was even examined by the United States Patent and Trademark Office (USPTO). Why?

On January 17, 2018, TMZ reported that the cosmetics company, which sells makeup and accessories exclusively through Walmart, was trying to lock down the exclusive right to use #METOO as a brand. Overnight, the company was flooded with criticism, with many on social media accusing the company of attempting to capitalize on the current social movement to speak out against the widespread prevalence of sexual assault and harassment. It is a cautionary tale for companies who wish to secure trademarks for terms associated with social movements. Not only is it likely to be unsuccessful, but it could seriously harm the company's reputation.

The purpose of a trademark is to preserve the ability of consumers to identify and distinguish a particular source of goods or services. So long as that source-identifying function is present, nearly anything can be the subject of a trademark registration, including a name like Coca-Cola, a symbol like the Nike Swoosh, the pink color of Owens Corning insulation, the layout of Apple Stores, or the flowery musk scent of Verizon stores. In contrast, if the proposed trademark is merely an informational, social, political, or religious message, it fails to function as a trademark.

#MeToo is a textbook example of the kind of social or informational message that simply cannot function as a trademark. The phrase was originally coined in 2007 by Tarana Burke – the director of the organization Girls for Gender Equity. However, it took on a new life in 2017 in the wake of widespread allegations of sexual misconduct against powerful men. The #MeToo hashtag started appearing on social media on October 15, 2017. Since then, it has appeared in millions of social media posts, becoming a symbol of solidarity, women's empowerment, and the need to raise awareness of the prevalence of sexual harassment and assault.

Hard Candy applied to register a standard-character version of #METOO on October 20, 2017, just five days after it started appearing on social media. If granted, the company would have had the exclusive right to use any variation of #METOO (font, color, design, etc.) in connection with cosmetics, fragrances, and anything related to those products. The application went unnoticed until the January 2018 TMZ article. Less than 12 hours after its publication, Hard Candy's CEO personally signed the paperwork to abandon the application. He issued a statement claiming that the company intended to donate the proceeds from the sales of #METOO products, but by that point, the damage was done.

For trademark practitioners, the decision to seek registration of a #METOO trademark seemed unwise. #METOO is a textbook example of the kind of informational, social, or political message that would lead to a failure-to-function as a trademark refusal. For instance, of the 15 applications that were filed to register BLACK LIVES MATTER:

  • Seven were abandoned after receiving a failure-to-function as a trademark refusal;
  • Six are currently awaiting examination (but will likely suffer the same fate);
  • Two were approved (BLACK LIVES MATTER TOO and BLACK LIVES MATTER TO ME), but are not registered and would be almost impossible to enforce.

Likewise, 11 applications were filed to register BOSTON STRONG in the wake of the Boston Marathon Bombing (two of which were within two days of the tragedy). All 11 applications received a failure-to-function as a trademark refusal, and every single one has since been abandoned. Similarly, someone applied to register a trademark for SEPTEMBER 11, 2001 on September 11. The application received a failure-to-function as a trademark refusal, the applicant appealed, and somewhat unsurprisingly, he lost.

In the case of #METOO, Hard Candy is not alone in attempting to lock down the exclusive right to sell merchandise with that phrase. Applications have been filed to register METOO for social networking software, #METOO for rubber or silicone wristbands, and #METOO and #METOO CLAIMS for legal consultation services. In all likelihood, these applications will be rejected. However, if the Hard Candy case is any indication, it's not just the loss of the trademark application at stake, but also, the company's reputation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions