by Dennis Cxrouch
In re Lizzo LLC (TTAB 2023)
In a new precedential opinion, the TTAB has sided with the musical artist Lizzo — agreeing to register her mark “100% THAT BITCH” for use on apparel. The Trademark Examining Attorney had refused registration on “failure-to-function” — concluding that the phrase was a commonplace expression used to express a well-recognized sentiment.
The phrase comes from Lizzo’s 2017 song Truth Hurts (remade in 2019) that has become a viral sleeper hit. The original line in the song is “I just took a DNA test, turns out I’m 100% that bitch.” But Lizzo herself did not create the phrase. Rather, Lizzo apparently saw a social media meme about being 100% that bitch and then added it to her song. The examining attorney concluded that “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.”
On appeal, the TTAB reversed the refusal. Unlike patents and copyrights, trademark law is not designed to reward the creative endeavor of invention or authorship. Rather, trademark is designed as a consume-protection and market-function tool and so focuses on consumer perception. Here, the evidence suggests that the mark is being used in an ornamental fashion (rather than as simply words) and that ordinary consumers associate the mark with Lizzo. Even though she didn’t create the words – she is the one who made them popular and transformed the “lesser known phrase to more memorable status.” On those grounds, the TTAB concluded that the mark is registrable and thus reversed the denial.
A few years ago the mark would have also been rejected as scandalous, but that issue has been off the table since the Supreme Court’s FUCT decision.
Read the TTAB Decision here: Lizzo TTAB Decision