A trademark can give its owner a monopoly over use of a range of items that comprise its brand – a certain word, phrase, logo, slogan, sound, or even a smell. As any business owner knows, each of these may be an essential component of a company’s brand. However, good branding is always closely connected to the goods and services the company provides. Similarly, a trademark will only protect those marks that are associated with the goods and services the trademark owner provides. Thus, there is an inherent limitation in trademark protection. Not everything can be trademarked.
A primary purpose of trademark law is source identification. This does not necessarily mean that a trademark must name the source, but simply that the trademark indicates a single particular source. Thus, a certain shade a blue can indicate that a piece of jewelry came from Tiffany’s, and the crown on a holiday card can indicate that the card came from Hallmark.
Herein is the intrinsic flaw in an attempt to trademark the phrase “Happy Holidays”: the phrase is typically dissociated from any product or service. Although these words commonly appear on greeting cards, this use is generally seasonal. In addition, the phrase does not appear on cards to indicate source, but to express a sentiment.
Even if possible, a savvy card manufacturer may shy away from trademarking a phrase like “Happy Holidays.” As the Tiffany blue example demonstrates, a trademark protects a company’s goodwill. By consistently indicating a single source of goods, consumers can be assured that the product they are buying meets the standards of quality produced by a source with which they are familiar. The phrase “Happy Holidays,” however, is frequently used outside the context of greeting cards. As such, it would not strongly indicate source, and therefore would not effectively accumulate goodwill for the trademark owner.
There are other legal principles that serve as obstacles to trademarking a seasonal well-wishing. While we have used the phrase “Happy Holidays” to explore some principles of trademark law and the value of owning a trademark, we have by no means exhausted the legal underpinnings of why the phrase can’t be trademarked. Trademark law does protect a monopoly for a trademark owner, but this monopoly is balanced with the public’s rights to expression. Thus, we are free to, and sincerely do, wish you a happy holiday season.