Out of the pandemic arises a new-ish instrument of technology: Quick Response (QR) codes. These QR codes can be read by a mobile phone camera and enables touchless transactions, ability to view menus, or even receive someone’s contact information stored within your phone. Even the United States Patent and Trademark Office (USPTO) has succumbed to the hype with promises to incorporate QR codes on trademark registration certificates, stating “This allows you to more easily access your certificate and verify that the information on the printed certificate matches TSDR. This is also a step toward providing an official digital registration certificate that will replace the print version.” China has been using QR codes for years now, using this technology for integration into digital wallets to shop and pay easily. America was slow to the punch in adopting this technology in part due to the initial requirement to have a QR code reader application. It wasn’t until 2017 that Apple then enabled all iPhone cameras to read QR codes.
As a side note, QR coded restaurant menus use cookies to capture and track the customer’s data. This presents a privacy issue, as the use of the QR codes may allow restaurants to store purchase data with the customer’s contact and payment information.
Which begs the question that probably keeps you up at night, “can a QR code be a trademark?” The TL;DR version is: No.
To obtain a registration for trademarks, the mark must be “distinctive” and cannot readily describe the goods or services or be a sign that is not indicating a commercial source. Thus, QR codes aren’t really distinctive, they’re square by nature with different combinations of “squiggles” within the square. Contrast this with the idea that if consumers see the Nike swoosh mark, or the “LV” initials of Louis Vuitton, they know which company the mark belongs to and what category of goods it applies to. A QR symbol is used for commercial purposes to convey information or used in ordinary business practices. Furthermore, as public policy it would be impossible to allow one company a right to monopolize the exclusivity of using a QR code for the goods or services category. Even though QR codes have unique data there still the remains the common elements that all QR codes retain. That’s not to say that a trademark cannot utilize a QR code incorporated with other design elements into a design mark and it must distinctly promote or sell your goods or services. It will be very interesting to see how QR codes are used in trademarks and where they will pop up next!
On that note, SHAMELESS QR CODES PLUG HERE!:
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