The case before the Trademark Trial and Appeal Board (TTAB) Proceeding №92071980 is no run-of-the-mill cancellation petition. The case, styled Elevated Faith LLC v. GODISGHL, LLC, might be considered a progeny of Matal v. Tam and Iancu v. Brunetti, concerns the right to register religious symbols, and exposes critical flaws in trademark examination. Naturally, it also involves a celebrity.
On August 8, 2013, the musician Nick Jonas posted on Instagram the following symbols in the form of a tattoo, with the statement “God is greater than the highs and lows.”
(I’m not sure what inspired the tattoo; I’ve tried contacting Nick but he seems to have better things to do than to discuss his social media history with me.) The post received over 180,000 likes, and led to countless copycat tattoos and opportunistic retailers. A Google image search today of the phrase “God is greater than the highs and lows” shows a significant online marketplace of the symbols linked with the phrase and the biblical chapter Romans 8. (I submitted 700 such examples in a recent TTAB brief.)
Nearly two years after the Jonas post the brothers Jeremy and Joseph Guindi applied for trademark registration of the symbols. (The Guindi brothers would become GODISGHL, LLC.) They described the mark as containing the literal elements G and V, and made no mention in their application of the symbolic phrasing or reference to Romans 8. (Later, their website and social media accounts associated with the trademark would prominently feature the headline “God Is Greater Than The Highs And Lows,” followed by “Romans 8:39.” Sort of like saying ‘no smoke here’ while roasting marshmallows over the Burning Man.)
The Guindi brothers’ application file, Serial №86565390, shows that the trademark examiner spent only a few minutes searching “gvv” in the database. There is no evidence that the examiner searched outside the X-Search database, and the mark was published in the Official Gazette accompanied by “Mark Literal(s): G V V.” The mark registered on April 18, 2017, in Class 25 for various forms of apparel.
What does this have to do with Tam and Brunetti? The Supreme Court in Tam-Brunetti has limited the Patent and Trademark Office (PTO)’s ability to bar registration on obscene (think FUCT/ MY PENIS / BITCHES AGAINST BULLSHIT) and offensive (think swastikas) marks. As partial justification, the Supreme Court was critical of the PTO’s arbitrary decisions around what marks should be limited by Lanham Act § 2(A):
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it…[c]onsists of or comprises…
matter which may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them to contempt, or disrepute…
Immoral…or scandalous matter.”
Prior to the Tam decision, the PTO applied § 2(A) haphazardly, as the Supreme Court saw it unlawfully limiting freedom of speech based on arbitrary examiner viewpoints:
Relevance? On March 2, 2019, a Chinese manufacturer applied for registration of the mark “God is Greater Than The Highs and Lows.” An Office Action was issued against this Serial №88322995, claiming that the phrase is a “commonly used religious inspirational message,” meaning the mark could not register under Sections 1, 2, 3, and 45 of the Lanham Act. Each exhibit that the trademark examiner used as a basis for this Office Action featured the symbols registered in the Guindi brothers’ mark / Jonas tattoo. The symbols are inseparable from the phrase, but in one case the PTO has determined that they are registrable and in another case that they are not.
The G>^V symbols may be historical; they are just as likely a product of the social media era, in which an image is rapidly associated with an idea and upon a million shares becomes axiomatic. In either case, trademark registration of the symbols should be barred because the symbols and phrasing cannot serve as true source identifiers. (Even my babysitter obtained a tattoo of the symbols as biblical code for Romans 8 with no knowledge of the viral Jonas post or the registration holder.)
The Supreme Court decided that the §2(A) disparagement clause of the Lanham Act inappropriately impinged upon freedom of speech. In an another constitutional scenario, unchecked registration of religious symbols could impinge upon the free exercise of religion. If for instance an e-commerce company is allowed to obtain trademark registrations on biblical phrases, or symbolic shorthands for phrases, then it could prevent other retailers from selling goods with those religious references to the exclusion and detriment of consumers who want to freely purchase such goods in furtherance of their religious practices. Worse, with registrations in hand, the effective monopoly holder of such religious references could alter their meanings through product orientation and message association. The G>^V registration holder is now aggressively targeting sellers of goods with these symbols (thousands of them) on platforms like Amazon and Etsy. As these demands are exposed, I’m still waiting to find out What Would Jonas Do? #canttrademarkgod
Kevin Christopher, principal of rockridgelaw.com, is pro bono counsel for cancellation petitioner Elevated Faith LLC in TTAB Proceeding №92071980. A mission-oriented law firm, Rockridge directs 10% of its time and revenue to environmental and social impact causes. The opinions I express here are personal opinions supported by arguments I’ve made in the proceedings.