By Howard W. Kline

As June 7th (“6/7 Day”) approaches, teachers across the U.S. are surely relieved it falls on a Sunday this year.

For trademark attorneys, however, “67,” “six-seven,” and other viral phrases raise a different question:

Can you actually claim exclusive rights in something everyone is saying? 

A lot of people seem to think so, as the USPTO has recently received many trademark applications seeking to protect “67”. Before diving in, though—what is “67”?

For the uninitiated, or anyone born before 2010, “67” is a viral, meme-driven phrase popular with Gen Alpha that has no fixed meaning and is often paired with a hand gesture.

From a trademark perspective, when a phrase goes viral, the USPTO routinely issues refusals based on a failure to function. Specifically, the USPTO refuses registration on the basis that the applied-for trademark is a commonplace term, message, or expression widely used by a variety of sources that merely conveys an ordinary, familiar, well-recognized concept or sentiment.

After all, if a term is widely used as a meme or social expression, consumers are very unlikely to recognize it as identifying a single source.

So how has the USPTO treated the flood of “67” applications? 

Not surprisingly, the vast majority of trademark applications for “67”, “6/7”, and “six seven” have been refused on the basis of:

  • failure to function;
  • merely ornamental use; and/or
  • likelihood of confusion with prior-filed marks.

That said, the examination results have not been entirely consistent over the past several months. Notably, the following applications were recently approved for publication:

  • U.S. Trademark Application Serial No. 99/416,372 for 67 for “online retail store services featuring coffee, cosmetics, personal care products, dietary supplements, and nutritional products (excluding device holders and component parts thereof)” in Class 35; and
  • U.S. Trademark Application Serial No. 99/544,567 for 67 for “non-alcoholic beverages for nutritional and energy supplementation purposes” in Class 32.

This underscores a broader issue trademark practitioners are increasingly seeing: the line between a non-source-identifying viral expression and a registrable mark is not always applied uniformly. 

In many cases, the outcome turns on context—how the mark is used, the nature of the goods/services, and whether the applicant can demonstrate that consumers would perceive the term as a brand rather than a cultural reference.

Bottom line: if everyone is using it, it probably isn’t functioning as a trademark.

#TrademarkLaw #IntellectualProperty #USPTO #Branding #Trademarks #Viral