"Keep calm and carry on" Confusion over trademark?
"Keep calm and carry on" seems to have been used to market a plethora of goods from t-shirts to mugs to apps. The saying has also been adapted to many different variations all using the same 'crown' at the top of the statement. I am aware that it started as a Churchillian propaganda piece in the UK during the bombing of London but has it been TM'd in the US. Not too sure if anyone will know what I'm talking about but it has become very common in the UK and has now migrated across the pond and starting to pop up everywhere. Can it be used here? Thank you for any input. PS, I have read short phrases cannot be copyrighted?
You asked whether the phrase KEEP CALM AND CARRY ON can be used in the U.S. In order to answer that question, you will need to hire an experienced trademark attorney who can obtain and analyze a trademark clearance search and then prepare a trademark clearance opinion for you. No one can answer your question here because we do not have all of the facts we need to answer the question and you should not give more facts here in this public forum.
Here is some background information that I think will be helpful to you:
1. Don't confuse trademarks and copyrights. They protect different things.
Trademarks are source identifiers. They are used by companies to distinguish their goods and /or services from goods and / or services of other companies. In the U.S. trademark rights arise from use of a trademark on goods or in connection with services. Rights arising from use in commerce are referred to as “common law” trademark rights. Registration with the federal government (U.S. Patent and Trademark Office) is not required to obtain rights, but it is highly advantageous.
Copyright subsists in original works of authorship fixed in a tangible medium of expression. Copyright rights attach immediately upon the creation of the original work of authorship. So, as soon as an author types her novel in her word processing program or an artist sketches his design, each owns a copyright in and to their original work. Registration with the federal government (U.S. Copyright Office) is not required to obtain rights, but it is highly advantageous as one may only bring a lawsuit for copyright infringement if the work is federally registered.
2. Single words or phrases usually do not merit copyright protection, because they do not meet the required level of originality.
3. Single words or phrases can and often do serve as trademarks (source identifiers). So, if used properly KEEP CALM AND CARRY ON could function as a trademark.
4. Trademark rights are not "rights in gross." What that means is that trademark rights are established by using a mark in commerce only IN CONNECTION WITH THE GOODS OR SERVICES WITH WHICH THE MARK IS USED (unless a mark is famous). That is why DELTA faucets and DELTA airlines can co-exist without likelihood of confusion. One company has established rights to the DELTA mark only as to faucets and related goods while another company has established rights to the DELTA mark only as to airline services. Consumers would not likely think that faucets and airline services emanate from the same source. You asked whether KEEP CALM AND CARRY ON can be used in the U.S. A key question is on what product or in connection with what service does someone wish to establish use (again, please don’t answer here). Once your own experienced trademark attorney has run and analyzed a search of existing rights (federal, state, and common law) can she understand the landscape to see whether the proposed use would be infringing of any existing rights.
5. Trademark rights are jurisdictional. That means that just because someone owns rights in a mark in the UK, does not necessarily mean that that person owns the rights in the U.S. The owner would have to take affirmative steps to secure their ownership in both jurisdictions.
6. There may also be some copyright issues regarding the design. So an experience intellectual property attorney should be consulted to sort those out.
Bottom line – you need to hire an experienced intellectual property attorney to obtain and analyze the proper clearance searches and provide you with an opinion once she has all of the facts of your situation.
This answer is for general information purposes only. This communication does not constitute legal advice, nor... more
This answer is for general information purposes only. This communication does not constitute legal advice, nor does it form an attorney-client relationship.
My colleague offered a very generous and thoughtful overview.
You did not mention what you intend to use this for exactly. If you intend to use it as a trademark (perhaps a tagline) that identifies your good or service you will need to conduct the proper due diligence (see link below for more info on this).This is the only way any of us could answer the question of whether it is being used at present. But remember, even if it is being used, if the goods/services are vastly different from what you offer you may still be able to use and register the mark
Most of us here, including myself, offer a free phone or Skype consult.
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The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the areas of business law and intellectual property to entrepreneurs, small-to-medium size businesses, independent inventors and artists across the nation and abroad.
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In short, it is important to distinguish between a mark or words used to identify the source of a good, like a trademark and a design on a shirt which may be a copyright. Flat out "word ownership" is often misinterpreted. There are word marks like "Just Do It" to identify and sell Nike products, and there are design marks like the swoosh symbol. Similar to your query, the words can be trademarked to identify a manufacturer, so can a symbol and both can be used and registered together. You should hire a trademark or copyright attorney before committing to using the words yourself.
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No legal advice or research upon which one can rely is being provided here. The author assumes all inquiries on Avvo are hypothetical, or too general to give competent advice. The author strongly suggests all serious inquiries be taken to an attorney's office with the intent to hire competent counsel.
The field is at least partially occupied. Registration was granted to Keep Calm and Carry On Ltd., UK on December 6, 2011 Trademark KEEP CALM AND CARRY ON to identify the origin of the following goods:
General purpose metal storage containers; Metal key rings; Non-luminous and non-mechanical metal signs; Cufflinks; Jewellery, clocks and watches; Address books; Blackboards; Books in the field of history and books in the field of humor; Calendars; Coasters of paper; Diaries; Folders; Greeting cards; Noteboards; Notebooks; Passport covers; Pens; Pictures; Postcards; Posters; Stationery; Stickers; Table mats of paper; Chalkboards; Table mats made of cardboard; Coasters made of cardboard;Beach bags; Duffel bags; Flight bags; Luggage and trunks; Luggage tags; Tote bags; Travel bags; Wallets; ushions; Deck chairs; Non-metal key rings; ake tins; Coasters, not of paper and other than table linen; Containers for household or kitchen use; Crockery, namely, pots, dishes, drinking cups and saucers, bowls, serving bowls and trays; Lunch boxes; Lunch pails; Mugs; Personal dispensers for sticking plasters for domestic use; Plates; Tea pots; Trays for domestic purposes; Bath towels; Beach towels; Bed and table linen; Bed blankets; Blanket throws; Blankets for outdoor use; Lap blankets; Oven mitts; Table linen of textile; Table linen, namely, coasters; Tea towels; Towels; Travelling blankets; Woollen blankets; Arons; Baseball caps and hats; Eyeshades; Footwear; Jackets; Jumpers; Shirts; Sweatshirts; T-shirts; and Underwear