A catchy line can become the most recognizable thing a brand or creator owns. Our main copyright and trademark law page explains how registration protects a brand; this page explains why phrases are harder to register than names. The Lanham Act defines a trademark as something used "to identify and distinguish" one seller's goods from others' and "to indicate the source of the goods" (15 U.S.C. 1127). A phrase that buyers read as a message rather than a brand fails that test, however well known it is. The USPTO calls this a failure-to-function refusal, made under Sections 1, 2 and 45 of the Act (15 U.S.C. 1051, 1052, 1127).
How the USPTO Examines a Slogan or Hashtag, Step by Step
- The examiner reads the phrase in context. The question is how the relevant public would perceive it with your goods or services (TMEP 1202.04).
- The examiner searches for how others use it. Evidence can include third-party products, websites and social media posts using the same or similar wording.
- The specimen is checked. Size, location and dominance on the goods matter; a slogan across the front of a shirt can read as decoration (TMEP 1202.03(a)).
- Descriptiveness is checked too. A slogan that describes the goods, or praises them in ordinary terms, is refused on that ground as well (TMEP 1209.03(s)).
- For hashtags, the "#" or the word HASHTAG is generally given no source-identifying weight, and the rest of the mark is judged on its own (TMEP 1202.18).
- You respond with evidence of source perception, a new specimen, a disclaimer, or a decision to rebrand.
| Refusal | Typical trigger | Can 2(f) or the Supplemental Register fix it? | Authority |
|---|---|---|---|
| Widely used message | A common saying or social, political or religious sentiment used by many sources | No | TMEP 1202.04(b), 1202.04(d) |
| General information or praise | Wording that tells buyers about the goods, or ordinary laudatory claims | No, if merely informational | TMEP 1202.04(a) |
| Ornamental | A phrase displayed as decoration on shirts, mugs, jewelry and the like | Sometimes, with secondary source or acquired distinctiveness; not if purely ornamental | TMEP 1202.03 |
| Merely descriptive slogan | The phrase describes a feature or purpose of the goods | Possibly, with proof of acquired distinctiveness | TMEP 1209.03(s) |
| Hashtag used only as a tag | The specimen shows the hashtag organizing posts or comments | No | TMEP 1202.18(a) |
Why Do So Many Slogans Fail to Function?
Because buyers have seen them before. The examination manual says matter that "merely conveys ordinary, familiar, or generally understood concepts or sentiments," including social, political or religious messages in common use, would not be perceived as indicating source (TMEP 1202.04(b)). People buy goods bearing those messages for the sentiment, not to identify who made them. The cases it collects include EVERYBODY VS RACISM for tote bags and apparel, GOD BLESS THE USA for decorative goods, TEAM JESUS for apparel, and I ♥ DC. Variations of a common message fail the same way; the manual's example is PROUDLY MADE IN THE USA.
This refusal is hard to overcome. You can submit evidence that the public sees the phrase as pointing to a single source, but the more commonplace the phrase, the less likely that showing succeeds (TMEP 1202.04(d)). Long use and big sales figures "generally do not prove recognition of the matter as a mark," a hang tag with the phrase on it does not cure the problem, and the manual says an applicant "cannot overcome" a merely informational refusal by amending to the Supplemental Register or claiming acquired distinctiveness. Even the "TM" symbol on the specimen "cannot transform an unregistrable designation into a registrable mark" (TMEP 1202.04).
What About Slogans That Describe or Praise the Product?
Wording that only gives general information about the goods, including "highly laudatory claims of superiority," also fails to function (TMEP 1202.04(a)). The manual's main example is the slogan THE BEST BEER IN AMERICA, which the Federal Circuit held could not function as a mark for beer. Common commercial phrases, such as WHY PAY MORE! for supermarket services, are refused too (TMEP 1213.05(b)(i)). A slogan that merely describes a feature of the goods without being a common phrase is closer to an ordinary descriptiveness problem, and may register on proof of acquired distinctiveness; our page on answering a merely descriptive refusal explains those options.
Slogans can register. The manual points to QUALITY THROUGH CRAFTSMANSHIP, which registered for radio equipment because the applicant advertised it extensively and used it in the manner of a trademark, and the examiner did not show others using it, and to a hair color slogan that had become distinctive (TMEP 1202.04(d), 1213.05(b)(i)). The pattern: an unusual phrase, used consistently as a brand, not a phrase anyone might say.
Why Are Phrases on Merchandise Refused as Ornamental?
Because on a T-shirt, a big phrase across the chest usually looks like the design people are buying. The manual says slogans on T-shirts, sweatshirts, jewelry and plates "have been refused registration as ornamentation" that buyers see "as conveying a message rather than indicating the source" (TMEP 1202.03(f)(i)). The examiner weighs size, location and dominance: a small, neat word over the pocket may read as a mark, while a larger version "emblazoned across the front of a garment" may read as decoration (TMEP 1202.03(a)).
There are ways through. A phrase on a shirt can identify a "secondary source," the brand behind the merchandise, if you own a Principal Register registration of the same mark for other goods or services, or can show it is recognized as a mark for them (TMEP 1202.03(c)). Ornamental matter that is not purely ornamental can also register under Section 2(f) with concrete evidence of recognition, but five years of use alone is generally not enough (TMEP 1202.03(d)). For intent-to-use filings, the ornamental refusal usually waits until you file a specimen (TMEP 1202.03(e)). Our page on trademark classes for merchandise covers the class side. A specimen must show the mark as actually used on the goods, labels or tags (37 CFR 2.56), and a hang tag or neck label helps show trademark use, though it will not cure a widely used message.
When Can a Hashtag Be a Trademark?
Only when it identifies the source of goods or services. The manual says the hash symbol and the word HASHTAG generally "do not provide any source-indicating function" because they just organize social media searches (TMEP 1202.18). So adding "#" to an unregistrable phrase does not make it registrable; its example is #SKATER, merely descriptive for skateboards. If the wording after the "#" is distinctive, the symbol is disclaimed, as in # INGENUITY for business consulting. A unitary mark like #SLUGGERTIME for T-shirts needs no disclaimer but must still function as a mark (TMEP 1202.18(a)).
The specimen often decides it. If it shows the hashtag merely tagging posts, such as #SEWFUN used to organize comments about sewing classes, registration is refused. Social media posts by others can also be evidence that a hashtag is a widely used message; the manual cites #MAGICNUMBER108, used widely by fans of the Chicago Cubs (TMEP 1202.04). A hashtag on the product's label, or in advertising that presents it as the brand, has a better chance.
Can a Creator Trademark a Catchphrase?
Sometimes, and the same rules apply. A catchphrase that fans repeat in comments and memes is, by that very spread, at risk of reading as a common expression rather than a brand. One used by a creator as the name of a product line, a show segment or a recurring event, and placed on labels and packaging the way a brand is, stands a better chance. If your channel or show name is already registered for entertainment services, merchandise bearing it may qualify as secondary source (TMEP 1202.03(c)). Our guide to trademark protection for content creators and influencers covers channel names and brand deals. For which goods to list, see how many trademark classes you need.
Does Copyright Protect a Slogan or Catchphrase?
No. The Copyright Office says "words and short phrases, such as names, titles, and slogans, are uncopyrightable," and lists "catchwords or catchphrases" and "mottos, slogans, or other short expressions" among the examples (Copyright Office Circular 33). It points to trademark law instead. A longer piece of artwork that includes the phrase can still be protected for its design; our page on protecting a logo with a trademark, a copyright or both explains where each applies.
What Changes the Answer
- How common the phrase is. The more widely used, the less likely it identifies one source (TMEP 1202.04(d)).
- How it appears on the goods. Labels and tags support a mark; large front prints suggest ornament (TMEP 1202.03(a)).
- Whether you already own a related registration. It can support secondary source for merchandise (TMEP 1202.03(c)).
- Whether it praises or describes. Ordinary laudatory claims fail to function (TMEP 1202.04(a)).
- The filing basis. Ornamental refusals usually wait for the specimen in intent-to-use filings (TMEP 1202.03(e)); see our page on filing as in use or intent to use.
A Worked Example
For example, suppose an Athens, Georgia fitness coach ends every video with a short, familiar motivational phrase and wants to register it for T-shirts and fitness instruction. A search shows the phrase on motivational posters, apparel and social posts from many unrelated sellers. The examiner would likely refuse it as a widely used motivational message, and neither a hang tag nor years of use would change that.
Now suppose the coach's phrase is an unusual coined line that nobody else uses, printed on the neck label and hang tag of the shirts and shown in class schedules as the name of the program. That use looks like a brand, and the application has a real chance. If the coach already owns a registration for the program name for fitness instruction, shirts bearing it have a secondary-source argument as well.
Common Mistakes
- Filing for a popular saying. Widely used messages fail to function regardless of who said it first (TMEP 1202.04(b)).
- Using a front-print photo as the specimen. It suggests ornament; show the label or tag (TMEP 1202.03(a)); see what to do when a specimen is refused.
- Adding "#" to fix a weak phrase. The symbol adds no source significance (TMEP 1202.18).
- Relying on the TM symbol. It does not turn a message into a mark (TMEP 1202.04).
- Expecting 2(f) or the Supplemental Register to rescue a common message. They cannot (TMEP 1202.04(d)).
- Registering the slogan for copyright. Short phrases are not copyrightable (Circular 33). Our page on what can't be copyrighted covers the rest of that list.
What to Do This Week
- Search the phrase online, on marketplaces and on social media to see who else uses it.
- Search federal records for the same or similar phrases.
- Put the phrase on labels, hang tags or packaging, not only as a front print.
- Use it consistently as a brand name in ads and product listings.
- List the goods and services you would claim, and check whether you already own a related registration.
- If the phrase is common, consider a more distinctive variation before filing.
Frequently Asked Questions
Can Someone Else Register a Phrase I Made Famous?
If the phrase has become a common expression, it may not function as a mark for anyone. If it identifies you as a source, your earlier use can be the basis to oppose or challenge a later filing; our page on what to do when someone files for your brand covers the routes.
Do I Need to Disclaim the Hash Symbol?
Usually, when it is separable from distinctive wording, as in # INGENUITY; not when the mark is unitary, as in #SLUGGERTIME (TMEP 1202.18(a)).
Can a Slogan Be Part of a Larger Mark?
Yes. If the slogan is unregistrable on its own but the mark has registrable matter, the slogan is disclaimed (TMEP 1213.05(b)(i)).
Is a Hashtag Alone, With No Words, Ever Registrable?
Sometimes, for goods or services unrelated to social networking, where it reads as arbitrary; the manual's examples are HASHTAG for liquor and THE HASHTAG for office rentals (TMEP 1202.18(b)).
Does Registering a Slogan Stop People From Saying It?
A registration covers use as a mark for the listed goods or services. It does not give you ownership of the words in everyday speech, which is one reason the USPTO refuses phrases that function only as messages.
Zala IP Law prepares trademark applications and office action responses for brands and creators across the United States and internationally. If you want to register a slogan, catchphrase or hashtag, request a consultation or call 404-313-1701, and bring photos of how the phrase appears on your products and posts.