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Will Religious Matter Be The Next Constitutional Challenge to Trademark Registration Denials by the USPTO?

By Steve Baird® on December 9, 2019
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When thinking about brands comprising religious matter, I think of EZEKIEL 4:9.

The EZEKIEL 4:9 brand has been registered as a trademark for bread since 1990.

The brand owner had to clear some chaff from the Principal Register to do so, threshing this EZEKIEL as abandoned, and gaining this EZEKIEL by assignment.

It presently owns five federal registrations for depictions of the EZEKIEL 4:9 mark.

The above EZEKIEL 4:9 packaging explains the meaning behind the brand name:

“AS DESCRIBED IN THE HOLY SCRIPTURE VERSE: ‘Take also unto thee wheat, and barley, and beans, and lentils, and millet, and spelt, and put them in one vessel, and make bread of it …’ Ezekiel 4:9″ (emphasis added)

Despite use of the dreaded D-word on packaging, all five registrations issued without descriptiveness refusals or the need to show acquired distinctiveness.

So given that easy-button background at the USPTO, one might expect that a brand new application by the brand owner for EZEKIEL 4:9, expanding coverage to include nutritional supplement bars and beverages would be, well, easy.

You’d be wrong, because the USPTO issued an informational/incapable refusal, claiming after “further examination” EZEKIEL 4:9 is incapable as a trademark:

“Registration is refused because the applied-for mark is merely informational and constitutes a citation from a religious text that is used in the marketplace; it does not function as a trademark or service mark to indicate the source of applicant’s goods and/or services and to identify and distinguish them from others.”

The good news for this brand owner is the USPTO withdrew the refusal and approved the mark for publication, but only after a weighty 41-page response.

So, what if the Examining Attorney had held firm and required an appeal?

As I’ve hinted before, since disparaging and scandalous marks cannot be denied USPTO registration on First Amendment grounds, what about religious matter?

Would the USPTO be able to defend the constitutionality of denying trademark registration as comprising some forbidden fruit or matter from religious texts?

After all the First Amendment protects not only free speech, but free exercise of religion too, so the federal government cannot prefer non-religion over religion.

Photo of Steve Baird® Steve Baird®

View my professional biography

Just so you know, I’m all about brands and the law, both professionally and personally. I regularly annoy family and friends in retail stores by focusing on product labels—not to buy the product, but to read the fine print…

View my professional biography

Just so you know, I’m all about brands and the law, both professionally and personally. I regularly annoy family and friends in retail stores by focusing on product labels—not to buy the product, but to read the fine print and ask, “Who owns these brands” and “Did they really register those marks?” To understand the depth of my passion for brands and helping clients achieve their business goals, legally, you must understand that my interest in business and branding goes back to the late 1960s. The very first brand I recall profiting from was Jiffy®. Even before being old enough to deliver papers for the Iowa City Press Citizen, between episodes of Bewitched®, I would bake cupcakes and walk my finished product door-to-door, sampling along the way, of course, throughout our Kimball Road neighborhood, mostly selling them to husbands whose wives didn’t bake enough (probably watching Bewitched®), according to them at least. One hundred percent profit margins are easy when you can use the necessary equipment and raw materials directly from Mom’s kitchen. Mass producing “hot pads” (pot holders, not real estate) and selling them door-to-door was another favorite childhood business venture at the ripe age of six. Graduating to lawn-mowing age worked well with my paper routes because I could easily see who needed help cutting their grass and, in some cases, avoiding neighborhood ridicule. Yes, you’re right, Dad loaned me his Lawn-Boy® mower on weekends, rent-free, and even bought the gasoline (Dad was not brand loyal at all with gasoline, so I have no brand memory there). Another pure profit opportunity. Let’s just say that Mom and Dad were generous, unsecured investors in my development and future. Thanks Mom and Dad, I now understand the meaning of overhead and capital improvements! I bucked a lot of family tradition and jokes to become a lawyer and a trademark guru. There is not one lawyer in the family tree, as far as my sister knows (and she would know). Nearly everyone is, or was, a teacher of some kind. That must be where my passion for educating others about the legal implications of branding comes from. Basically, I have been speaking about the legal implications of branding since the early 90s, after permitting my pharmacist’s license to expire (after being a victim of an armed robbery where Dilaudid® was on the top of the gunman’s list of desired controlled substances), and shortly after working for an 86 year old federal judge whose chambers had a nice view of the White House in Washington, D.C. While I’d like to say that the movie My Cousin Vinny inspired me to become a lawyer, it was released two years after I graduated from law school. So, really, I guess it just inspired me to be a better lawyer and leader. For now, you can call me a “thought-leader” in the trademark world, and the thankful leader of a very talented group of creative and insightful lawyers and staff who are dedicated to putting our intellectual property clients in the best possible position to achieve their business goals. When I’m not in the office, “cracking the whip,” making sure others in the group keep their bios on this blog short and sweet, working (which isn’t to say I’m not still thinking about my clients’ businesses), or soaking it up in the hot-tub with my soul-mate, I am a dedicated family man – a.k.a. the chauffeur. Until they reach the driving age, I’ll continue to shuttle my four wonderful kids around to their athletic and other events, at which you can find me cheering in the stands.

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  • Posted in:
    Intellectual Property
  • Blog:
    DuetsBlog
  • Organization:
    Winthrop & Weinstine, P.A.
  • Article: View Original Source

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