Who knew that when President Donald Trump tweeted the word “covfefe” in the very early hours of May 31st that he would not only create confusion in the mind of the public, but would also create a bit of bedlam in the Patent and Trademark Office (PTO)? Since the mysterious tweet that made us all wonder if “covfefe” was a typo, a code word, or a word in some strange language, 35 people were prompted to apply for trademarks of the unusual combination of letters. When a query into the PTO’s Electronic Search System was made, six different variations of the word were among the many trademark applications, including one that declared (whether with patriotism or madness) “Covfefe — carry on vigilantly fighting evil forever.”

According to these pending applications for trademarks, there is also some confusion about under what circumstances one is entitled to apply for a trademark. Although there was no scarcity of ideas about what to trademark with the name “covfefe” — everything from clogs to stocking caps, from coffee to beer, from waterproof camera gear to batteries and perfume — there did not seem to be any understanding or consensus concerning the purpose of trademark law itself. The enthusiasm to get on the money-making bandwagon was there, but nobody seemed to have a ticket or even to know where the wagon was headed. Anyone looking into protecting intellectual property should first consult with an attorney skilled in this aspect of the trademark law.

How Trademark Actually Works

The fact of the matter is that in order to obtain a trademark on a word or phrase, the mark must already be in commercial use, associated with a particular service or product. In other words, one cannot trademark a word or phrase unless that word or phrase is already connected to the marketplace. In the covfefe case, a full 32 out of the 35 applications didn’t even claim to be using the mark in any commercial enterprise, demonstrating, as one intellectual property lawyer put it, “a fundamental misunderstanding of [U.S.] trademark laws.”

While you can trademark your brand name to prevent a competitor from using it to fool consumers, you cannot simply trademark a word or phrase. Though a sporting goods company has trademarked the name “The Athlete’s Foot,” and you cannot use that brand name on other sportswear or sporting gear, you can certainly use the phrase “athlete’s foot spray” in the name of your fungicide preparation.

It’s important to remember that, in order for “covfefe” to become a brand instead of just a silly internet word, time would have to pass during which one brand alone used the name. Since recent trademark applications have come from would-be producers of such disparate products as beach balls, girdles, and toys powered by alternative energy, and since there is not yet any intellectual property law preventing any of those who applied from beginning production, how the trademark applications are resolved is, for the moment, a moot point.