Can you get a Coronavirus or Covid-19 trademark?

While the Covid-19 pandemic spelled disaster for many businesses, for some it spelled OPPORTUNITY – and the chance to turn the sour business of the disease into profit. And some have tried their luck at applying for trademarks related to the crisis.

Here are some of the pending Covid-19 trademark applications in Australia:

Can you register a Covid-19 trademark?

The IP Office has the task of deciding which trademarks  are eligible to be accepted for registration and which must be rejected, according to the prescribed criteria set out in the Trade Marks Act.

When is a trademark not registrable? The main consideration is whether your  trademark is able to distinguish your goods from those of other businesses in the marketplace. The mark will be unlikely to be accepted for registration if it contains words that are: 

• laudatory
• generic
• descriptive
• confusing
• deceptive; or 
• offensive

Many trademark applicants don’t realise that in every industry, there are certain words which should be free for all businesses to use to describe their products or services. 

For example, in class 39 transport services, no one would be allowed to register the word COURIER as a trademark.  This makes sense, as all delivery and courier services should be able to describe their businesses using that word. 

However, a company that produces, for example, a range of luggage products or herbicides or paints could conceivably own a trademark registration for COURIER covering those products. This is because COURIER is not a commonly-used descriptive word for such products

Will Covid-19 trademarks get accepted?

It’s unlikely that the majority of the pending COVID  trademark applications will get accepted for registration. In all likelihood, the examiners at the IP Office will reject most of them on the basis that they are either descriptive (eg COVID CONFIRM for medical goods),  deceptive (eg. CORONA-VIRUS RESISTANT for soap) or possibly even offensive!

On the other hand, creative invented names, like DISCOVID for anti-bacterial preparations in class 5, which has been accepted, are much more likely to be registrable.
The jury’s out on whether trademarks for products which are not related to the health crisis will be approved for registration. Time will tell if T-shirts, bumper sticks or other merchandise with slogans like “I survived Covid-19” stand a chance?

If you’re inspired to apply for a COVID trademark, it’s probably wise to proceed with caution and get some legal advice before you proceed. Your efforts might be better spent getting trademark protection for your existing brands.

As with the Covid-pandemic, when it comes to protecting your business from copycats, the same saying applies: “prevention is better than cure”.