TTAB Sides with Lizzo, Finds her 100% THAT (Trademark Owner)

Lizzo just took a DNA test, turns out, she’s 100% a registered trademark owner. If you aren’t familiar with that phrase – you may be soon. A recent Trademark Trial and Appeal Board tribunal found Grammy-winner and internet icon Lizzo could register “100% THAT BITCH” as a clothing trademark.

Lizzo popularized her proposed mark in the opening line of her 2017 hit song “Truth Hurts,” which begins “I just took a DNA test, turns out I’m 100% that Bitch.” Although this blog’s author (a self-proclaimed Lizzo superfan) learned of the song’s release immediately, Truth Hurts was re-released in 2019 to widespread positive reception, landing atop the Billboard Top 100 chart for a historic seven weeks. From 2020 to the present, Lizzo’s popularity has skyrocketed and her 2022 album, Special, was Grammy-nominated for Album of the Year. She won Record of the Year during last night’s Grammy awards for a single from the Special album.

It comes as no surprise that Lizzo’s popularity increased the importance of protecting her brand as she tours, sells merchandise, and ramps up award season campaigns. After all, with increased brand popularity comes an increase in intellectual property infringement.

Although Lizzo’s self-branding is unique, the trademark examiner who initially refused the Houston native’s application in July 2022 found that “100% THAT BITCH” was a common expression that consumers would not perceive as a trademark. Citing evidence that others used the phrase in the marketplace, the examiner also said just because evidence people associate the popular lyric with Lizzo does not entitle her (or rather, her company) to exclusive use of the phrase.

Trademarks must be adequately descriptive to receive federal registration, or else they are rejected. The strongest and most easily protected types of marks are fanciful marks and arbitrary marks because they are inherently distinctive. Fanciful marks are invented words with no dictionary or ordinary meaning. Arbitrary marks are actual words with a known meaning that have no association with the goods protected. A third category, suggestive marks, suggest but do not describe qualities or the connection to goods and services. And a fourth category, descriptive marks, are words or designs that merely describe the goods or services. Like fanciful and arbitrary marks, suggestive marks are inherently distinctive, although it’s often difficult to predict whether the TTAB will consider them suggestive or merely descriptive. Descriptive marks are not inherently distinctive but may acquire distinctiveness (aka “secondary meaning”) over time through use and promotion, making them protectable.

Here, the TTAB reversed the examiner’s refusal, permitting Lizzo to register her iconic lyric as a clothing trademark. Lizzo’s hurdle was demonstrating the lyric was not merely a common expression and had to demonstrate the mark was associated with her. Siding with the pop star, the Board found that, although the examiner’s evidence showed widespread use of the mark, consumers can and would associate the phrase with Lizzo and her music. For example, by reviewing the evidence provided in the record including a 2019 Urban Dictionary definition entry for “100% THAT BITCH,” the Board found the entry’s date sufficiently tied to the song’s widespread release. The Board concluded enough evidence of use was contemporaneous with or after the release of Truth Hurts. “Considering the entirety of the record, we find that most consumers would perceive 100% THAT BITCH used on the goods in the application as associated with Lizzo rather than as a commonplace expression,” the Board said. TTAB’s decision provides a pathway for avoiding common registrant’s pitfalls when it comes to apparel.

If you are involved in a TTAB proceeding or need assistance registering your trademark, contact us to learn how we can help.

Griffith Barbee PLLC

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