Lizzo Can Register ‘100% That Bitch’ Trademark for Clothing Line

Grammy-winning singer Lizzo can register “100% That Bitch” as a clothing trademark because it’s not so commonly used that it can’t indicate a product’s source, a tribunal said as it reversed an examiner’s refusal Thursday.

Evidence of widespread use cited by the examiner shows not that it can’t function as a trademark, but that consumers associate the phrase with Lizzo and her music, the Trademark Trial and Appeal Board said. Third parties have used the phrase ornamentally on clothing, but that’s “outweighed by references in most of those uses to Lizzo,” the board said.

The precedential decision carves a path for registration of phrases popularized by celebrities who’ve created a strong association, even if a proposed mark might otherwise be considered ornamental or too commonplace.

Messages on clothing are frequently rejected for being ornamental—perceived as a message or decoration rather than indicator of who made the clothing. A phrase can also be too widely used outside of association with a particular source of products for it to function as a trademark. Who came up with or popularized a proposed mark is often deemed irrelevant to its registrability, which hinges on consumer perception.

Lizzo popularized the proposed mark in the opening line of her 2017 song “Truth Hurts,” which begins “I just took a DNA test, turns out I’m 100% that bitch.” It flew under the radar until it was re-released in 2019, and that year it exploded in popularity as it topped Billboard’s Hot 100 chart for seven weeks, tying the record for solo female rappers.

Her company Lizzo LLC applied for two word trademarks for “100% That Bitch” covering various types of clothing in June 2019, and an examiner finalized a refusal to register the marks in July 2022.

The examiner held that the phrase is a common expression that consumers won’t perceive as a trademark, and therefore would fail to function as a trademark—an indication of who made a product. The examiner cited evidence that others use the phrase in the marketplace and elsewhere, and said evidence people associate the lyric with Lizzo does not entitle Lizzo LLC to “appropriate for itself exclusive use of the phrase.”

100% Lizzo

Prominent ornamental use of a proposed mark “is porobative” of whether it’s widely perceived as a message rather than source indicator, the board said. But, “significantly,” all of that evidence references ultimately ties back to Lizzo, “Truth Hurts,” and her music in general.

The nature of the message conveyed also affects whether it can function as a trademark, the board said. Evidence doesn’t demonstrate that “100% That Bitch” is used in general parlance, nor conveys a common social, political, patriotic, religious or other informational message.

Proposed marks rejected as a common message in the past include “Think Green,” “Watch That Child,” “Proudly Made in the USA,” “Once a Marine, Always a Marine,” and “Drive Safely,” according to the opinion. “I ♥ DC” was deemed so ubiquitous as an ornamental feature of third party-sold apparel that it failed to function as a mark.

By contrast, evidence shows Lizzo first encountered “I did a DNA test and found out I’m 100% that bitch” in a Twitter meme in 2017, the year she used it in her song, the opinion said.

Creation Credit?

The examiner pointed out that Lizzo hadn’t come up with the lyric as part of the refusal, and pointed to articles noting allegations of plagiarism. But the board’s opinion noted she ultimately gave a writing credit to the creator of that meme. It went on to say that while she didn’t create the line, “lyrics from songs are more likely to be attributed to the artists who sing, rap or otherwise utter them, rather the songwriters.”

The examiner cited an Urban Dictionary entry for “100% That Bitch” as evidence of its ubiquity. But the opinion noted that was created in 2019, after Lizzo popularized the line, which doesn’t indicate it was “widely used, over a long period of time and by a large number of merchandisers.”

In addition, third-party retailers have responded to takedown notices from Lizzo’s counsel, recognizing the line is associated with Lizzo and her music, the board said.

Administrative Trademark Judge Peter W. Cataldo wrote the opinion, joined by Judges George C. Pologeorgis and Robert H. Coggins.

Chiesa Shahinian & Giantomasi PC represented Lizzo.

The case is In Re Lizzo LLC, TTAB, Serial Nos. 88466264 and 88466281, 2/2/23.