Lizzo Singing

Lizzo Just Took a TTAB Test – Turns Out “100% That Bitch” is Trademarkable

Alyssa GarciaNews & Insights

By Alyssa R. Garcia

Pop icon Lizzo scored a major legal win recently by successfully convincing the Trademark Trial and Appeal Board (the “TTAB”) to allow her to trademark the phrase “100% That Bitch” for use on and in connection with the sale of clothing after the initial denial of her registration application. The phrase grew in popularity in part due to Lizzo’s 2020 Grammy-winning hit “Truth Hurts,” wherein Lizzo exclaims “I just took a DNA test, turns out I’m 100% that bitch.”[1] The artist filed registration of “100% That Bitch” and was initially denied despite evidence that the trademark was inspired by the song itself. The trademark examining attorney (the “Examiner”) refused registration under Lanham Act Sections 1, 2, and 45.[2]

Lizzo filed the trademark registration application in June 2019.[3] To successfully register, Lizzo needed to prove that “100% That Bitch” identified her as the source of the goods being sold.[4] The Examiner, however, viewed the phrase not as a source identifier, but as a “message of self-confidence and female empowerment used by many different entities in a variety of settings.”[5] Even though the lyrics were in Lizzo’s hit song, the Examiner concluded that “evidence that consumers may associate the phrase with the famous singer/song because it was a lyric in the singer’s song does not entitle [Lizzo] as a singer-songwriter to appropriate for itself exclusive use of the phrase.”[6] Further, the Examiner denied Lizzo’s registration on the basis that the mark consisted of a “commonplace expression that would not be perceived by consumers as identifying and distinguishing the source of enumerated goods or services.”[7] In response, Lizzo’s counsel referred the court to successful registrations by other songwriters including Taylor Swift and Carly Rae Jepsen,[8] arguing that the treatment of these songwriters’ marks demonstrated a “common practice for well-known musical artists to adopt trademarks.”[9]

An additional hurdle for the singer’s registration application was the allegation of plagiarism from Twitter user @MinaLioness who claimed that Lizzo had stolen the lyric at issue from a 2017 tweet that contained the same phrase.[10] Although Lizzo settled the initial dispute by giving a writing credit on the song to the original tweet’s author, this further hindered Lizzo’s initial trademark application.[11] The Examiner noted that the lack of origination supported the mark’s ultimate denial.[12]

Lizzo fought back with receipts—that is with an Urban Dictionary entry defining “100% That Bitch” dating to 2019 (after the release of “Truth Hurts”) as opposed to 2017 when the initial tweet was published.[13] The Urban Dictionary entry was used to reiterate that Lizzo’s song was contemporaneous to the phrase’s popularity, making it distinctly attributable to her.[14] The TTAB noted that Urban Dictionary presented some reliability challenges due to its reliance on user-generated definitions, but that the evidence of record was still enough to corroborate the Urban Dictionary entry.[15] Notably, the Examiner could not reject the registration on grounds that the word, “Bitch” was a violation of the Lanham Act solely based on its vulgarity. This is due to the result in In re: Brunetti, wherein the “immoral and scandalous” provision of the Lanham Act was thrown out by the Supreme Court, thus permitting the registration of potentially offensive language as a mark.[16]

After a four-year fight, Lizzo prevailed in securing “100% That Bitch” for use in the sale of clothing. Her win not only represents a victory for musical artists, but also for other celebrities and well-known pop culture icons wanting to protect phrases attributable to them. Influencers and celebrities alike should take note of the TTAB’s decision and be sure to document the distinct origins of their potential marks as well as examples of their use in popular culture specifically attributable to their influences.

[1] Lizzo, Truth Hurts, on Cuz I Love You (Nice Life Recording Co. and Atlantic Recording Corp. 2019).

[2] In re Lizzo LLC (T.T.A.B. 2022).

[3] Id. at 2.

[4] 15 U.S.C. § 1127.

[5] In re Lizzo LLC at 7.

[6] Id. at 8.

[7] Id. at 33.

[8] Id. at 29.

[9] Id.

[10] 12.

[11] Id.

[12] Id. at 8.

[13] 10.

[14] Id. at 38.

[15] Id.

[16] In re Brunetti, 877 F.3d 1330 (Fed. Cir. 2017).