The Authors' Take - Trademarking “COVID” and “Coronavirus” in the United States: An Empirical Review

Trademarking “COVID” and “Coronavirus” in the United States:

An Empirical Review

by Irene Calboli

Since its global debut in early 2020, the COVID-19 pandemic has led to a tsunami of trademark applications including the terms “COVID,” “Coronavirus,” and other medical and pandemic-management related terms. In this Article, I examine the applications that have been filed with the United States Patent and Trademark Office until the end of 2020. In particular, I present a comprehensive set of data regarding the products for which the applications have been filed, the type of filing entities, the legal basis for filing, and the date of filing throughout the relevant period. Based on these data, the COVID-19 pandemic led not only to a large number of filings for medical and pandemic-related products, but also for unrelated and promotional products. Individuals and small businesses were the largest groups of filers, and over two thirds of the applications were based on intent-to-use rather than use in commerce. The number of filings closely mirrored the development of the pandemic during the various months of 2020. In addition, when compared with previous filings for signs including terms related to past sensational events, including pandemics, the numbers of “COVID-19 related” applications were much higher than any previous filings. This confirms the catalyst effect of the COVID-19 pandemic also on the trademark application system, even though a large number of these applications may ultimately not be registered as several signs may be found to be generic or descriptive—in particular for medical and pandemic-related products—or deemed not to function as trademarks—for example if they are used as ornamentations on promotional products. The signs may also be found to be deceptive if they imply a specific cure or solution, when this may not be accurate. Still, the data presented highlight several interesting aspects of the phenomenon of “filing sensationalism,” even though it remains difficult to understand what triggered this large number of filings precisely with respect to the COVID-19 pandemic--a time that we all hope to put behind in the nearest future.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]