Another day, another celebrity filing a trademark application to coopt an everyday expression. At the center of this case: Kylie Jenner and the household wakeup call “Rise and Shine”.  Following the online explosion of a video of Jenner serenading her daughter with the familiar refrain, she immediately sought to capitalize on the phenomenon by selling sweatshirts with a logo of her face in a sun and her viral version of the verse, “RIIISE AND SHIIINNEE”, on the sleeves. These sweatshirts sold out shortly after their release and have remained so since. Less than a week later, she applied to trademark “Rise and Shine” as well her signature spin on the phrase.

Jenner filed three applications related to “Rise and Shine”. The first applied to use the phrase for cosmetics. This can only mean that Jenner plans to release makeup with the shade name “Rise and Shine”, most likely through her company Kylie Jenner Cosmetics.  She may also be planning to release a whole Rise and Shine makeup set; if the success of her sweatshirts is any indication, any such sets would fly off the shelves. The second application requested the trademark for clothing, specifying gloves, headbands, dresses, jackets, sleepwear, socks, and tops, among other items. The third application also requests the phrase for use on clothing, but with Jenner’s unique spelling, “RIIISE AND SHIIINNEE”. This spelling and classification would protect her sweatshirts that she has already been selling through her website.

Jenner may have a difficult time convincing the USPTO that her mark is unique and identifies her brand, a prerequisite for approval. The phrase only became associated with her after the video’s release on October 10th. A bare-bones search for “rise and shine” on the USPTO website finds there are over 30 live trademarks with some variation of the phrase. However, the marks that exactly match Jenner’s applications are registered under different classifications. Most notably, Hardee’s owns the trademark for “Rise and Shine” and has been using it in commerce since 1982 – but in breakfast food, not in bronzer and blush. The USPTO may be willing to approve Jenner’s applications because there are no other trademarks similar to the phrase in their respective classification.

If the USPTO approves her application for “Rise and Shine”, this doesn’t mean you are forever banned from using the phrase. While Jenner could sue a company or brand using the phrase on clothing and makeup for trademark infringement, someone would still be able to use it for goods that fall into a different classification, and anyone can use it in everyday life.

When filing your own trademark, it’s important to conduct a comprehensive search to ensure that your desired mark is not already registered within the classification of goods for which you plan to use it. If it is a common phrase, make sure that the trademark is being used in a unique way or in a unique classification, as Jenner did with her cosmetics classification. Jenner’s clever classifications give her a higher chance of approval compared to Lebron James’ attempt to trademark Taco Tuesday for marketing/social media use.

If you are interested in a trademark or would like help assessing your chances of a successful application, please contact us for a consultation.

Even lawyers aren’t immune to the narcotic draw of reality TV, though in our own idiosyncratic way. Suffice to say we’ll be following this story very closely, so stay tuned for updates!