NOTE: This disposition is nonprecedential.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 Division, 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 Office, Alexandria, VA. 

______________________ 

Before LOURIE, REYNA, and HUGHES, Circuit Judges.

Case: 22-1961 Document: 38 Page: 1 Filed: 11/13/2023
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 refusal to register GO’s applied-for mark: “EVERYBODY VS 

RACISM.” In re GO & Assocs., LLC, No. 88944728, 2022 

WL 1421542 (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 registration 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 clothing, bottoms as clothing, and head wear; 

and

Promoting public interest and awareness of 

the need for racial reconciliation and encouraging 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 refused to register the mark because it failed to function as a 

source-identifier for GO’s goods and services. J.A. 40. Rather, 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.” Id. 

As support for the refusal, the examiner cited dozens of examples of the mark being used in informational (rather 

than source-identifying) ways. Id. 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 videos; and on various articles of clothing. See id. at 43–96 

(cited evidence).

GO responded by arguing that its uses of the mark 

were source-identifying, while those relied upon by the examining 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 argued that the third-party uses of the mark in speech, rap 

songs, podcasts, church sermons, and the like did not render the mark incapable of functioning as a trademark. Id.

at 108. To support its position, GO submitted search engine 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 significant 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 exclude others from using the mark to promote racial reconciliation “would seriously impede the heartfelt need of 

citizens of the country to express that everybody should be 

Case: 22-1961 Document: 38 Page: 3 Filed: 11/13/2023
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 nontrademark manner to consistently convey an informational, anti-racist message to the public,” as opposed to a 

source-identifier of GO’s goods and services, the Board affirmed the examiner’s refusal to register the mark. Decision at *7, *10.

GO appeals from the Board’s decision. We have jurisdiction under 28 U.S.C. § 1295(a)(4)(B) and 15 U.S.C. 

§ 1071(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 15 U.S.C. §§ 1052, 1053. 

In other words, it is a threshold requirement of registrability 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. Id.

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

599 U.S. 140, 146 (2023) (“[A] trademark is not a trademark 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 

15 U.S.C. § 1052(e).” In re Vox Populi Registry Ltd., 

25 F.4th 1348, 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 marketplace and how it is perceived by consumers. See id.; see 

also In re Light, 662 F. App’x 929, 934–35 (Fed. Cir. 2016)

Case: 22-1961 Document: 38 Page: 4 Filed: 11/13/2023
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, 

120 U.S.P.Q.2d 1710 (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 “informational matter,” such as slogans, terms, and phrases used 

by the public to convey familiar sentiments, because consumers 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. Edison Co. v. NLRB, 305 U.S. 197, 229 (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 substantial evidence.

In reaching its conclusion, the Board properly considered 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 ‘everybody 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 evidence showed that the mark frequently appeared “in opinion 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-identifying. Id. at *7 (“As to [GO’s] services, consumers would 

perceive EVERYBODY VS RACISM as merely an informational 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 attributable to GO—a finding GO does not challenge on appeal. Id.; cf. In re Nat’l Ass’n to Advance Black Birth, No. 

90581377, 2022 WL 4385036, at *6 (T.T.A.B. Aug. 23, 2022) 

(“The record indicates that the mark, as used on the specimens, would be associated with Applicant, the National Association 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 Ventures LLC, 64 F.4th 1375, 1381 (Fed. Cir. 2023). 

Contesting this conclusion, GO asserts that “[p]er se refusals based on the Informational Matter Doctrine are unconstitutional” because they “involve[] content-based 

discrimination that is not justified by either a compelling 

or substantial government interest.” GO Br. at 8–9 (quoting In re Elster, 26 F.4th 1328, 1331 (Fed. Cir. 2022), cert. 

granted sub nom. Vidal v. Elster, 143 S. Ct. 2579 (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 sourceidentifier. See id. at 1330. The same is true for the other 

registered marks GO cites, such as “MAKE AMERICA 

GREAT AGAIN,” Registration No. 5,020,556; “The Slants,” 

Matal v. Tam, 582 U.S. 218 (2017); and “FUCT,” Iancu v. 

Brunetti, 139 S. Ct. 2294 (2019).

What is more, however, is that GO’s constitutional argument is based on a faulty premise: that the Patent and 

Trademark Office’s (“PTO”) application of the so-called “Informational Matter Doctrine” results in the per se refusal 

of any mark that contains informational matter, regardless 

whether or not consumers perceive the mark as sourceidentifying. 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 function 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 public 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 

Case: 22-1961 Document: 38 Page: 7 Filed: 11/13/2023
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 “cardinal sin” of the Lanham Act to undermine the source-identifying 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 requirement. We therefore reject GO’s constitutional challenge.

We have considered GO’s remaining arguments, and 

none has merit. Accordingly, because we find that substantial evidence supports the Board’s conclusion that the public 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 refusal to register “EVERYBODY VS RACISM.”

AFFIRMED

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