It’s the season to be jolly!
You’ve got a brilliant idea: print “Merry Christmas” or “Merry Xmas” on shirts, mugs and tote bags, sell them online, maybe even turn it into a whole brand.
But before you start slapping “Merry Xmas” on everything and calling it your brand, can anyone actually trademark a Christmas greeting?
What Does a Trademark Protect?
Across most systems, including Malaysia and the EU, a trade mark is basically:
A sign that can be represented clearly and that helps consumers tell your goods/services apart from someone else’s.
That “sign” can be a word, logo, shape, colour, sound and so on, but it must act as a badge of origin, not just a nice message.
A basic checklist to register for a trademark is: [*]
- Clear sign – something that can be shown on the register (word, logo, etc.).
- Distinctive character – consumers should see it and think,
“Oh, that’s this brand,” not “Oh, that’s just a slogan/greeting.” - Not purely descriptive or generic – it shouldn’t just describe the goods (“Fresh Bread” for bread) or be a basic term everyone in the trade needs to use.
Why “Merry Christmas” Fails as a Trademark
This is where the phrase comes to trouble, “Merry Christmas” is a greeting, not a brand. In Malaysia and other EU countries, terms like “Happy Birthday”, Happy New Year” and “Merry Christmas” are all common generic greetings.
The logic is that when customers see the phrase, they think happy holidays, not ‘this comes from a specific company’. MYIPO and EUIPO treat these phrases as non-descriptive and generic, finding they should remain free for public use.
Putting that on a shirt, that’s okay, free use of a greeting. Even if you want to trademark it, you’ll have to add in logos or words, make the term ‘merry christmas’ less significant in the grand scale of things and even then, most offices will not grant a monopoly over something that the public sees as pure decoration.
“Merry Christmas” Trademark Registered in the US?
Here’s a twist, in the United States, “MERRY CHRISTMAS” does appear on the trademark register, but in a very specific way.
For instance, ‘MERRY CHRISTMAS’ is trademarked by Hidden Wineries Inc for wines, while ‘WE WISH YOU A MERRY CHRISTMAS’ was trademarked by Old World Christmas Inc for kitchen utensils. “Merry Christmas From Heaven” was also trademarked for ornaments. [*]
This shows that in the US, common phrases are registrable when they’re tied to a specific good, used consistently as a brand label or appear in a more distinctive form. But even then, it does not give the owner the right to stop people from using Merry Christmas as a greeting, and they are only limited to the specific class and uses that function as trademark use.
Final Words
In Malaysia, Singapore or the EU, people are allowed to put ‘Merry Christmas’ on shirts or say it as a greeting, and should not expect to secure a trademark protection for broad phrases, as it would be treated as non-distinctive.
If you want to register a common phrase, create a more unique phrase or invest in a distinctive logo. If you plan to go large with the business, seek proper advice from us at Quality Oracle before you build everything around a phrase.
