Spread Some LOVE . . . Or Not

authorship copyright originality trademark

Today, May 1, is Global Love Day.  To commemorate the day, we spotlight ”love,” specifically the trademark registrations and copyright applications for LOVE.  Registrant At World Properties, LLC, a real estate brokerage company based in Chicago, Illinois, registered two marks with the USPTO, one each stylized trademark and service mark for LOVE®.  

Stylized LOVE mark

The first is in International Class 36, for real estate brokerage services, as Reg. No. 6,256,494, on January 26, 2021.  The second is in International Class 25 for clothing, namely, shirts; headwear; face masks made of cloth being headwear, as Reg. No. 6,465,015, on August 24, 2021.  The design mark is the stylized word “love” in primarily cursive writing.  Acting as source identifiers, LOVE® serves to identify both the service and goods as identified in registrant’s classes of goods and services.  There is really nothing controversial with these marks.

However, on July 9, 2020, At World Properties, filed a copyright application for the same two-dimensional stylized LOVE.  On July 14, 2020, At World filed a second copyright application for “Love Mural,” which is the stylized LOVE painted on a wall.  Both applications were refused registration by the U.S. Copyright Office.  In the “Love Mural,” request for reconsideration, At World argues that [there was a] litany of creative-driven decisions made to create the Work, which include the “distressed and weathered brick” and “location” of the mural.

“Love Mural”

On April 11, 2022, the Copyright Review Board (CRB) of the U.S. Copyright Office refused for a second time the registration of “Love Mural.”  The CRB found that there was a demonstrated lack of copyright authorship in the creation of “Love Mural.”  First, the creative work consists of the word “love” in white cursive writing and on a black background, which are not copyrightable in their individual elements.[1]  Fragmented words or phrases are not protected by copyright law.[2]  Further, “Love Mural” fails to demonstrate creativity because the word “love” is merely written in a standard linear arrangement and stylized in a typical cursive manner.  Finally, the CRB noted there was a lack of authorship in “Love Mural” because the:

[S]election of the “distressed brick wall” with its “weather-related decay” as an “independent creative choice” and the “basis for other creative choices” . . . [including] the Work’s location in an alley, “a location long associated with darkness, dankness, filth, and fear” as an “additional element of the artist’s creative decision making” . . . [are irrelevant] under the Copyright Act.  With regard to “medium,” “materials used to create a work have no bearing on the originality analysis.”

The LOVE trademark and “Love Mural” copyright applications illustrate the interplay between the different intellectual properties, and what may be registrable under one regime may not be under another regime.  A trademark ultimately must operate as a source identifier of the goods or services and distinguishing those goods or services from others (15 U.S.C. §1127).  On the other hand, a copyright protects creative expressions fixed to a tangible medium of expression, but does not protect mere words or short phrases (37 C.F.R. §202.1(a)).

For more information on the trademark and copyright application processes, or trademark and copyright laws in general, please contact Yonaxis.

[1] See 37 C.F.R. §202.1(a)).

[2] See CMM Cable Rep. Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1519-20 (1st Cir. 1996)).