The Trademark Trial and Appeal Board (TTAB) has approved the trademark registration of “100% THAT BITCH” by the musical artist known as Lizzo after the registration was initially rejected by the Trademark Examining Attorney.
Lizzo (born Melissa Viviane Jefferson) popularized the phrase in her hit song “Truth Hurts,” which includes the phrase “I just took a DNA test, turns out I’m 100% that bitch.”
Her company, Lizzo LLC, sought to register the phrase in International Class 25:
Clothing, namely, shirts, jackets, jerseys, beanies, baseball hats, headwear, shorts, tank tops, sweatshirts, long sleeve shirts, hooded sweatshirts, hooded shirts, bandannas, wristbands as clothing, headbands, shoes and sleepwear [and] Clothing, namely, t-shirts.
The Trademark Examining Attorney refused registration of the proposed mark under Trademark Act Sections 1, 2, and 45, 15 U.S.C. §§1051- 1052, and 1127, for failure to function as a mark on the basis that 100% THAT BITCH “is a commonplace expression widely used by a variety of sources to convey an ordinary, familiar, well-recognized sentiment.”
The Examining Attorney argued that Lizzo didn’t originate the term but merely popularized it:
Lizzo, herself, stated that the lyrics originated after seeing an internet meme containing the phrase “I just took a DNA Test, turns out I’m 100% that bitch,” which she later adopted and placed into her song “Truth Hurts.” Specifically, Lizzo is quoted that after seeing the meme containing the phrase it made her feel empowered, i.e., the phrase “made [her] feel like 100% that bitch.” By applicant’s own acknowledgment, she adopted these lyrics because of the message of female empowerment, and the party claiming prior use of the full lyric was given a coownership to the copyright of the lyrics. Accordingly, the phrase 100% THAT BITCH, as used by applicant, originated from as a derivation of the popular phrase “that bitch,” which was widely shared throughout social media by internet users.
Lizzo countered that the proposed mark is definitively associated with her.
However, the Examining Attorney concluded:
evidence that consumers may associate the phrase with the famous singer/song because it was a lyric in the singer’s song does not entitle the applicant as a singer-songwriter to appropriate for itself exclusive use of the phrase.
The Examining Attorney introduced into the record a page from the Urban Dictionary with the following definition of the term:
Noun. Slang. A woman whom EVERYONE wants to be. Everyone is extremely jealous of her. Bro Imma mess with a thot. Dude! Don’t! Why not? She’ll fuck you up! I’m not scared! Bro! You don’t understand! Understand what? She’s 100% that bitch!
The Examining Attorney (who was nothing if not thorough, and apparently not a Lizzo fan) also submitted screenshots from third-party commercial web pages showing the wording 100% THAT BITCH appears on a variety of goods, “including various items of clothing, key chains, mugs, stickers, bandanas for dogs, lip balm, wall art, patches, drinking glasses, and balloons.”
Lizzo responded with the argument that it is “common practice for well-known musical artists to adopt trademarks . . . that was inspired by the titles or lyrics of their songs, citing, among other trademark registrations, Reg. No. 5770375 for Taylor Swift’s LOOK WHAT YOU MADE ME DO for goods and services including clothing.
The TTAB noted that “The critical inquiry in determining whether a proposed mark function as a trademark is how the relevant public perceives the term sought to be registered.”
The TTAB also noted that
evidence in the record shows that others also use the designation in the marketplace, frequently in reference to Lizzo, her music and lyrics, which further informs our determination how consumers would perceive the proposed mark.
The TTAB thus concluded:
we find that the evidence of record shows that consumers encountering 100% THAT BITCH on the specific types of clothing identified in the application―even when offered by third parties―associate the term with Lizzo and her music.
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