Can you trademark a rallying cry like 'Boston Strong'?

David Ortiz #34 of the Boston Red Sox poses with a Boston Strong sign, which honors the Marathon bombing victims, before a game the Kansas City Royals at Fenway Park on April 20, 2013 in Boston, Mass.

The phrase “Boston Strong” became part of the vernacular last week, after the attack on the Boston Marathon.

It was printed on posters. It was on “The Green Monster” – the left field wall at Fenway Park. It also appeared on t-shirts. Now, a Massachusetts resident and an apparel company that’s based there argue they should be able to register “Boston Strong” as a trademark. 

Dale Cendali, a partner at Kirkland & Ellis and an adjunct professor at Harvard Law School, says a trademark can be virtually anything.

“The NBC chimes, a particular color green, or even the sound of a Harley Davidson engine,” she says. “All those kinds of things could be trademarked.”

Cendali says that, to register a trademark, you have to show that it’s being used for commercial purposes – that phrase, that sound, that object has to identify the company that’s behind it. Then, there’s the issue of “fair use.” Cendali says she finds it “very hard to believe” that people could be prevented from using a phrase like “Boston Strong.”

“We see this all the time,” Jennifer Taylor says. She is a partner at Morrison & Foerster. “And it happens for celebratory events, and it also happens in times of tragedy, like this.”

In the late ’80s, Pat Riley won the right to license the phrase “three-peat.” On Sept. 11, Todd Beamer, a passenger on United Flight 93, said, “Let’s roll.” That’s a phrase the Todd M. Beamer Foundation now has rights to.

Born Into It is one of the parties trying to register “Boston Strong.” In a statement, the company claims it has no intention of policing the trademark. It wants to make sure others don’t profit from it.

Boston University Law Professor Stacey Dogan says that makes it unlikely Born Into It’s application will be successful.

“Someone who says, I want to register this mark so that other people can’t claim rights to it, but I am going to allow others to use it freely, is basically conceding that the term has no trademark significance,” she says.

As the government grapples with what could go on t-shirts, Nike has had to grapple with what is already on some.

The apparel maker pulled a shirt it designed for Yankees fans months ago. It read, “Boston Massacre,” alluding to an attack by British soldiers in 1770, and a couple of series with the Sox.

That’s a phrase that means something different to many people today.

Correction: An earlier version of this story misspelled the name of the firm Morrison & Foerster. The text has been corrected.

About the author

David Gura is a reporter for Marketplace, based in the Washington, D.C. bureau.

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