The ALS Association has filed an application to register a federal trademark for "Ice Bucket Challenge", the viral sensation that has swept the nation this summer. Although most Americans likely associate "Ice Bucket Challenge" with the ALS Association, there is some dispute as to whether the Association was the first to use the term 'Ice Bucket Challenge' in combination with charitable fundraising. In particular, 'Ice Bucket Challenge' was used with lung cancer fundraising in early July of this summer, which use precedes the date of first use in commerce listed in the trademark filing, August 4, 2014.
In addition, there are other questions which likely need to be answered in the affirmative in order for registration to be granted, such as:
- Is the phrase "Ice Bucket Challenge" exclusively associated with the ALS Association?
- Is the phrase already generic? Has it been used by many others in ways that are unrelated to ALS?
Given publicly avaialble data at this time, it seems unlikley that the registration will be granted by the USPTO.
Although the trademark registration may not withstand scrutiny from the USPTO, the following statement from the ALS Association is fairly compelling and makes strong equitable case for registration:
The ALS Association is beside itself with gratitude to the millions of people who have participated in the Ice Bucket Challenge, and particularly grateful to the families who should fairly be credited with making the campaign go viral. The ALS Association took steps to trademark the Ice Bucket Challenge after seeing many examples of unscrupulous profiteers trying to drive revenue to themselves, instead of the fight against ALS. We secured the blessing of the families who initiated the challenge, which they provided without hesitation. The Association did this as a good faith effort to protect the integrity of the Ice Bucket Challenge. We are intent on preventing for-profit companies from capitalizing on this amazing, almost wholly grass-roots, and charitable campaign to raise money and awareness for the fight against ALS.
Unfortunately, a strong equitable case isn't likely to permit registration if the other requirements for trademark registration are not satisfied.
This brief post is by no means comprehensive. Always seek the advice of a competent professional when making important legal decisions.
Steve Cook is a trademark attorney in Mesa, AZ. Although his office is located in Mesa, Arizona, he represents clients throughout the Phoenix, Arizona Metropolitan area including the following east valley cities: Scottsdale, Paradise Valley, Tempe, Chandler, & Gilbert.
