Case: 22-1961    Document: 38   Page: 1    Filed: 11/13/2023




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

           IN RE: GO & ASSOCIATES, LLC,
                       Appellant
                ______________________

                        2022-1961
                  ______________________

     Appeal from the United States Patent and Trademark
 Office, Trademark Trial and Appeal Board in No.
 88944728.
                  ______________________

                Decided: November 13, 2023
                  ______________________

     PAUL W. KRUSE, Spencer Fane LLP, Nashville, TN, for
 appellant. Also represented by KYLE L. ELLIOTT, Kansas
 City, MO.

      BRADLEY HINSHELWOOD, Appellate Staff, Civil Divi-
 sion, United States Department of Justice, Washington,
 DC, for appellee Katherine K. Vidal. Also represented by
 BRIAN M. BOYNTON, DANIEL TENNY; CHRISTINA J. HIEBER,
 FARHEENA YASMEEN RASHEED, MARY BETH WALKER, Office
 of the Solicitor, United States Patent and Trademark Of-
 fice, Alexandria, VA.
                    ______________________

    Before LOURIE, REYNA, and HUGHES, Circuit Judges.
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 2                                   IN RE: GO & ASSOCIATES, LLC




 LOURIE, Circuit Judge.
      GO & Associates, LLC (“GO”) appeals from a decision
 of the United States Trademark Trial and Appeal Board
 (“the Board”) affirming the examining attorney’s final re-
 fusal to register GO’s applied-for mark: “EVERYBODY VS
 RACISM.” In re GO & Assocs., LLC, No. 88944728, 

 (T.T.A.B. Apr. 20, 2022) (“Decision”). Because
 substantial evidence supports the Board’s conclusion, we
 affirm.
                           BACKGROUND
     On June 2, 2020, GO filed an application seeking reg-
 istration on the principal register of “EVERYBODY VS
 RACISM” in standard characters. It identified the goods
 and services as:
            Tote bags;
            T-shirts, hoodies as clothing, tops as cloth-
            ing, bottoms as clothing, and head wear;
            and
            Promoting public interest and awareness of
            the need for racial reconciliation and en-
            couraging people to know their neighbor
            and then affect change in their own sphere
            of influence.
 J.A. 32.
      In a non-final office action, the examining attorney re-
 fused to register the mark because it failed to function as a
 source-identifier for GO’s goods and services. J.A. 40. Ra-
 ther, the examining attorney observed, the mark was “an
 informational social, political, religious, or similar kind of
 message that merely conveys support of, admiration for, or
 affiliation with the ideals conveyed by the message.” 

 As support for the refusal, the examiner cited dozens of ex-
 amples of the mark being used in informational (rather
 than source-identifying) ways. 

 For example, the
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 IN RE: GO & ASSOCIATES, LLC                                3



 examiner provided evidence that the mark had been used
 by referees in the National Basketball Association; in titles
 of rap songs, podcasts, church sermons, and YouTube vid-
 eos; and on various articles of clothing. See 

 at 43–96
 (cited evidence).
     GO responded by arguing that its uses of the mark
 were source-identifying, while those relied upon by the ex-
 amining attorney were “merely ornamental third party
 uses of EVERYBODY VS RACISM on clothing,” which
 could not function as a trademark. Id. at 106. It also ar-
 gued that the third-party uses of the mark in speech, rap
 songs, podcasts, church sermons, and the like did not ren-
 der the mark incapable of functioning as a trademark. Id.
 at 108. To support its position, GO submitted search en-
 gine optimization evidence, allegedly showing that the
 mark was “almost never used or searched” before GO began
 using it in May 2020, and that GO’s successful policing of
 the mark throughout the summer of 2020 led to “a signifi-
 cant drop in searches.” Id. at 106–08.
      But the examining attorney was not persuaded and
 concluded that competitors’ ornamental uses of the mark
 only reinforced the fact that consumers would likely view
 the mark “as a sentiment rather than a source.” Id. at 183
 (“The evidence showing the wearing of shirts with
 ‘EVERYBODY VS RACISM’ by NBA referees during their
 protest walk out shows that they wore the shirts to convey
 meaning, and that meaning was understood by those who
 saw the referees.”). The examining attorney also observed
 that GO’s search engine evidence showed that public use of
 the mark aligned with the general timeline of the “heated
 anti-racism protests throughout the nation in the wake of
 the George Floyd killing.” Id. That evidence therefore did
 little to show that the public perceived the mark as a
 source-identifier. Because granting GO the right to ex-
 clude others from using the mark to promote racial recon-
 ciliation “would seriously impede the heartfelt need of
 citizens of the country to express that everybody should be
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 4                                IN RE: GO & ASSOCIATES, LLC




 against racism,” the examining attorney finally refused
 registrability of the mark. Id.
     GO appealed to the Board. Finding that the record as
 a whole “show[ed] wide use of the proposed mark in a non-
 trademark manner to consistently convey an informa-
 tional, anti-racist message to the public,” as opposed to a
 source-identifier of GO’s goods and services, the Board af-
 firmed the examiner’s refusal to register the mark. Deci-
 sion at *7, *10.
     GO appeals from the Board’s decision. We have juris-
 diction under 

(a)(4)(B) and 

(a).
                         DISCUSSION
      The Lanham Act conditions the registrability of any
 mark on its ability to distinguish an applicant’s goods and
 services from those of others. See 

, 1053.
 In other words, it is a threshold requirement of registrabil-
 ity that the mark “identify and distinguish” the goods and
 services of the applicant from those of others, as well as
 “indicate the source” of those goods and services. 

 § 1127; Jack Daniel’s Props., Inc. v. VIP Prods. LLC,
 

, 146 (2023) (“[A] trademark is not a trade-
 mark unless it identifies a product’s source (this is a Nike)
 and distinguishes that source from others (not any other
 sneaker brand).”).
     As we recently observed, “whether a proposed mark is
 a source identifier typically arises before us in the context
 of whether the proposed mark is descriptive under
 

(e).” In re Vox Populi Registry Ltd.,
 

, 1351 (Fed. Cir. 2022) (collecting cases). But
 “the source identifier requirement is broader than just
 whether a proposed mark is generic or descriptive,” and
 typically focuses on how the mark is used in the market-
 place and how it is perceived by consumers. See id.; see
 also In re Light, 

, 934–35 (Fed. Cir. 2016)
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 IN RE: GO & ASSOCIATES, LLC                                 5



 (affirming Board’s refusal to register a mark containing
 over 570 words arranged in column format because the
 “sheer number and visual display” of the words made it
 “significantly more difficult” for the public to perceive the
 mark as a unitary trademark (internal quotation marks
 and citation omitted)); D.C. One Wholesaler, Inc. v. Chien,
 

 (T.T.A.B. 2016) (refusing to register
 “I ♥ DC” for use on apparel and souvenirs because it “would
 be perceived by purchasers and prospective purchasers as
 an expression of enthusiasm for the city of Washington,
 DC,” as opposed to an indicator of the source of the goods
 on which it appeared). If the nature of a proposed mark
 would not be perceived by consumers as identifying the
 source of a good or service, it is not registrable. See TMEP
 § 1202.04(b) (precluding from trademark protection “infor-
 mational matter,” such as slogans, terms, and phrases used
 by the public to convey familiar sentiments, because con-
 sumers are unlikely to “perceive the matter as a trademark
 or service mark for any goods and services.”). 1
      Whether or not a mark functions as a source identifier
 is a question of fact that we review for substantial evidence.
 Vox Populi, 29 F.4th at 1351–52. A finding is supported by
 substantial evidence if a reasonable mind might accept the
 evidence as adequate to support the finding. Consol. Edi-
 son Co. v. NLRB, 

 (1938). Applying that
 standard to the case before us, we conclude that the Board’s
 determination that “EVERYBODY VS RACISM” does not
 function as a source-identifier for GO’s products (i.e., tote
 bags and apparel) or services (i.e., promoting awareness of
 the need for racial reconciliation) was supported by sub-
 stantial evidence.
     In reaching its conclusion, the Board properly consid-
 ered the evidence of record, which included not only the


     1   Throughout its brief, GO refers to this general rule
 as the “Informational Matter Doctrine.”
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 6                                IN RE: GO & ASSOCIATES, LLC




 third-party evidence identified by the examining attorney,
 but also GO’s specimens and other evidence of its own use
 of the mark. See Decision at *3–4. Based on the totality of
 evidence, the Board agreed with the examining attorney
 that the third-party uses of the mark “show[] that ‘every-
 body vs racism’ is commonly used in an informational and
 ornamental manner on clothing items, tote bags, and other
 retail items sold by third-parties to convey an anti-racist
 sentiment.” Id. at *6. The Board also found that the evi-
 dence showed that the mark frequently appeared “in opin-
 ion pieces, in music, podcasts, and YouTube videos, and by
 organizations (websites) that support efforts to eradicate
 racism.” Id. Considering the diversity and breadth of
 third-party uses, the Board found that GO’s own specimens
 and uses were insufficient to render the mark source-iden-
 tifying. Id. at *7 (“As to [GO’s] services, consumers would
 perceive EVERYBODY VS RACISM as merely an informa-
 tional statement against racism rather than a service
 mark.”). And significantly, as the Board observed, GO did
 not argue that any of the dozens of third-party uses of
 “EVERYBODY VS RACISM” were trademark uses at-
 tributable to GO—a finding GO does not challenge on ap-
 peal. Id.; cf. In re Nat’l Ass’n to Advance Black Birth, No.
 90581377, 

, at *6 (T.T.A.B. Aug. 23, 2022)
 (“The record indicates that the mark, as used on the speci-
 mens, would be associated with Applicant, the National As-
 sociation to Advance Black Birth, by itself, even though it
 may also be used by third parties.” (emphasis added)).
     GO’s challenge on appeal amounts to nothing more
 than a disagreement with the weight the Board assigned
 to the conflicting evidence. See, e.g., GO Br. at 14 (“[T]he
 Board discounted [GO]’s specimens and evidence critical to
 understanding a modern consumer’s perception of the
 Mark, and instead relied on less convincing and irrelevant
 information.”). But the Board properly considered both
 GO’s uses and third-party uses when assessing how the
 public would likely perceive the mark. And reweighing the
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 IN RE: GO & ASSOCIATES, LLC                                7



 evidence “is not the role of this court.” In re Charger Ven-
 tures LLC, 

, 1381 (Fed. Cir. 2023).
     Contesting this conclusion, GO asserts that “[p]er se re-
 fusals based on the Informational Matter Doctrine are un-
 constitutional” because they “involve[] content-based
 discrimination that is not justified by either a compelling
 or substantial government interest.” GO Br. at 8–9 (quot-
 ing In re Elster, 

, 1331 (Fed. Cir. 2022), cert.
 granted sub nom. Vidal v. Elster, 

 (2023)).
 This argument is meritless.
     As an initial matter, Elster is inapposite. In that case,
 there was no issue as to whether or not the applied-for
 mark, “TRUMP TOO SMALL,” functioned as a source-
 identifier. See id. at 1330. The same is true for the other
 registered marks GO cites, such as “MAKE AMERICA
 GREAT AGAIN,” 

; “The Slants,”
 Matal v. Tam, 

 (2017); and “FUCT,” Iancu v.
 Brunetti, 

 (2019).
      What is more, however, is that GO’s constitutional ar-
 gument is based on a faulty premise: that the Patent and
 Trademark Office’s (“PTO”) application of the so-called “In-
 formational Matter Doctrine” results in the per se refusal
 of any mark that contains informational matter, regardless
 whether or not consumers perceive the mark as source-
 identifying. That is not true. Indeed, one can immediately
 envision many marks, such as GO’s own example, MAKE
 AMERICA GREAT AGAIN, that contain informational
 matter (e.g., widely used slogans), but nevertheless func-
 tion as source-identifiers. The fundamental purpose of a
 trademark or service mark is to identify and distinguish
 the source of a particular good or service. If the PTO were
 to allow the registration of marks that are used by the pub-
 lic in such a way that they cannot be attributed to a single
 source, the purpose of trademark law would be undermined
 to the detriment of the public who would be no longer free
 to express common sentiments without the threat of
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 8                                 IN RE: GO & ASSOCIATES, LLC




 “paying a licensing fee to someone who sees an opportunity
 to co-opt a political message.” Decision at *10 (citing J.A.
 298); cf. Jack Daniel’s, 599 U.S. at 157 (deeming it the “car-
 dinal sin” of the Lanham Act to undermine the source-iden-
 tifying function of a trademark). Contrary to GO’s position,
 nothing in the Lanham Act prohibits registration of a mark
 containing informational matter, so long as the mark also
 functions to identify a single commercial source.
 “EVERYBODY VS RACISM” fails to meet that require-
 ment. We therefore reject GO’s constitutional challenge.
      We have considered GO’s remaining arguments, and
 none has merit. Accordingly, because we find that substan-
 tial evidence supports the Board’s conclusion that the pub-
 lic is unlikely to associate the mark “EVERYBODY VS
 RACISM” as a source-identifier of GO’s goods and services,
 we affirm.
                         CONCLUSION
     For the foregoing reasons, we affirm the Board’s re-
 fusal to register “EVERYBODY VS RACISM.”
                         AFFIRMED