If you have been on any type of social media in the last couple of months, you have undoubtedly seen or been called out for the “ice bucket challenge”. The rules of the challenge require a person challenged to either get doused with ice water and pay $10 to charity or refuse the ice shower and make a $100 charitable donation. Over the summer, the challenge became strongly associated with support for the disease ALS (amyotrophic lateral sclerosis). As the popularity of the challenge surged, the ALS Association considered whether a trademark application to protect the challenge was appropriate. After first deciding that the group should protect the mark, it has since reconsidered and withdrawn its trademark application.
On August 22, 2014, the ALS Association filed trademark applications on “Ice Bucket Challenge” and “ALS Ice Bucket Challenge”. Both trademark applications were filed in the class covering charitable fundraising. Reaction to these trademark applications was mixed. Several commentators compared the filing to those who sought trademark registration on “Boston Strong” after the Boston Marathon bombing. They claimed that ALS wasn’t the first charity to use the ice bucket challenge and that it should be left to all rather than controlled by one group. In response, the ALS Association made a statement saying that it was seeking trademark registration to protect the term from unscrupulous individuals who were looking to profit off of the popularity of the challenge. T-shirts and similar merchandise are a quick buck for someone looking to capitalize on a popular trend.
After further consideration, however, the ALS Association decided it was in the best interest to abandon the applications. It is unlikely that registrations for Ice Bucket Challenge would have been allowed. The use of the phrase is widespread by individuals that its use has become ‘ubiquitous.’ Whether a term or slogan functions as a trademark or service mark depends on how it would be perceived by the public. The Ice Bucket Challenge mark really just conveys an informational social or similar kind of message and does not function as a trademark or service mark. In any event, it appears the term will be open for all to use. While this may lead to some unprincipled individuals cashing in on commercial opportunities around the challenge as the ALS Association suggested, hopefully, that will be outweighed by other charities piggybacking on the success that the ALS Association enjoyed from the viral nature of the challenge and raising money for a good cause.
As highlighted by this situation, trademarks can be tricky. When and how a trademark should be used or whether trademark registration should be sought is not always cut and dried. If you have questions about the trademark process, please contact the trademark attorneys at Trademark Access. Let their experience protect your valuable brand.