Overview:
The Trademark Trial and Appeal Board affirms the United States Patent and Trademark Office’s refusal to register a trademark for an influencer’s website. Could consumer surveys have influenced this decision?
No Room for a Trademark at Gabby’s Table
Gail Weiss is an influencer and owner of the brand Gabby’s Table. Gabby’s Table is a blog that recommends crockery, utensils, cookbooks, and other cooking-related products. These products link out of Weiss’s website to Amazon and other websites that sell directly to consumers, and Weiss receives compensation for directing traffic to those sellers. Weiss applied for a trademark in 2019, for the mark GABBY’S TABLE in connection with “Computerized on-line retail store services in the field of food, cooking utensils, cookware, culinary arts cookbooks, magazines and videos, and lifestyle books, magazines, and videos in Class 35.” The United States Patent and Trademark Office refused to register the trademark, and Weiss appealed to the Trademark Trial and Appeal Board, the appellate arm of the USPTO.
Wielding and Protecting Influence
Influencer marketing is an emerging business involving individuals who partner with brands to endorse products through social media and other online channels. Whether the influencers try on clothing to show new styles or cook with a new gadget, their use is increasing marketing budgets globally. According to one digital marketing agency, 25% of marketers use influencer marketing. Influencers, in turn, make a significant amount of their income through affiliate marketing. In 2024, brands spent a predicted $15.7 billion. An influencer does much more than influence consumer behavior; they also create their own brands and content. Which raises a question: what sort of intellectual property protections are available to influencers?
Place Setting and Trademark
Under the Trademark Act, to be eligible for protection, a mark must be used in close proximity with the service or service provider, or in a way that is directly associated with them. According to the TTAB decision about Gabby’s Table, there must be something that creates an anchor in the mind of the consumer.
Weiss argued that her blog itself should be afforded a trademark, due to her influence over buyer decisionmaking, and that the blog acted as a “virtual shelf space.” The USPTO did not agree. It found that because Gabby’s Table did not participate directly in commerce, but rather linked to other websites, it was not in direct association with the commercial activity. The TTAB agreed, ruling that an influencer who only provided links to a third-party site with a “Buy Now” button was not close enough to retail services.
Available Influencer Protections and Consumer Surveys
In the Gabby’s Table decision, the TTAB ruled that trademark protections are not available for influencers who merely have a list of products that link out to retail services pages. However, influencers do have a place in consumers’ minds, and they do influence consumer behavior. To show that what they post is important to consumers, influencers could consider submitting a survey as evidence, examining whether the influencer’s statements were material to a purchase.
If you are looking for a consumer survey to help protect your trademark or brand, contact MMR Strategy Group today.