It is common knowledge among lawyers that copyright protection does not normally extend to titles, words, or short phrases. After all, movies, politicians, and our family friends constantly quote books, movies, and famous politicians, actors, and others. From a trademark perspective, we see famous quotes on drink caps, product labels, wrappers, and other items. There doesn’t seem to be like use of a common phrase or quote could expose anyone to trademark infringement claims. After all, as you read the first sentence of this post, did you wonder whether Turner Entertainment had endorsed, sponsored, or was in some other way affiliated or connected with this blog post?
Turner owns a number of registrations for the mark THERE’S NO PLACE LIKE HOME for use in connection with clothing, glass and ceramic goods, coffee cups, non-precious stones for garden or ornamental use, and paper goods.
On March 3, Turner filed a Notice of Opposition against NeuroQuest LLC’s application for the mark THERE’S NO PLACE LIKE HOME TO HAVE YOUR EEG ESPECIALLY SINCE WE MAKE HOUSE CALLS for use in connection with “neurodiagnostic testing, monitoring and reporting services, namely, providing ambulatory in-home electroencephalogram by order of physician.” Although likelihood of confusion is alleged, Turner did not identify with any detail how neurological testing is related to clothing, ceramic goods, or the other goods identified in Turner’s registrations. The pleading also alleges claims of dilution.
Home Sweet Home apparently is a line from a song from an 1823 opera written by John Howard Payne (thanks Wikipedia). It is also a line from L. Frank Baum’s book The Wonderful Wizard of Oz from 1900, and the subsequently produced movie starring Judy Garland. Turner acquired its rights based on its ownership of the Wizard of Oz movie. You may also recall the well known There’s No Place Like Home for the Holidays song from the 1950s.
Of course, the Trademark Manual of Examining Procedure Rule 1202.17 prevents registrations of “universal symbols,” which the TTAB relied upon to affirm the refusal to register Craigslist’s application to register the peace symbol. More recently, the TTAB has refused each and every attempt to register the mark BOSTON STRONG. The supplied reasoning is that these phrases or symbols are so well-known and used that they are ubiquitous and that the public has been extensively exposed to such use. Because of this, they are unable to signify one particular source and fail to function as a mark.
Setting aside the unrelatedness of the goods and services and the differences in the marks (sorry NeuroQuest, but your applied-for mark is unlikely to be the next NIKE…), can THERE’S NO PLACE LIKE HOME even function as a mark? While the use of the phrase may cause consumers to remember or recall the Wizard of Oz, that is not the test for a likelihood of confusion, instead, there must be some confusion as to the source, sponsorship, endorsement, or licensing of the goods. Absent any additional indicia, such as a picture of a scarecrow, Dorothy, or a yellow brick road, I think it is a stretch to claim that a consumer would think that Turner had begun licensing its intellectual property to a neurological testing service.
But hey, what do I know. I’m just a man hiding behind the curtain of a blog, pay no attention to me…