## Facts

- Donald E. Moriarty applied to register the standard-character mark **WORST MOVIE EVER!** on the Principal Register.
- The application (Serial No. 86367823) covered: “**Parody of motion picture films and films for television comprising comedies and dramas featuring a mashup of different motion picture films**,” in International Class 9.
- After an examiner’s amendment to the identification of goods, the application was published for opposition and later proceeded to a Notice of Allowance.
- After multiple extensions, Moriarty filed a Statement of Use with a specimen.
- On review of the Statement of Use, the USPTO Examining Attorney refused registration under **Trademark Act §§ 1, 2, 3, and 45**, concluding that WORST MOVIE EVER! is a slogan that **fails to function as a trademark** because it does not identify and distinguish a single source.
- The refusal relied on evidence that “worst movie ever” is commonly used in newspapers, magazines, and internet articles as a familiar evaluative statement about movie quality (i.e., that a film is extremely bad).
- The Examining Attorney submitted numerous third-party articles and similar materials to show widespread use of the phrase as ordinary commentary rather than branding.
- Moriarty sought reconsideration and appealed the final refusal to the Trademark Trial and Appeal Board (TTAB), and also attempted to submit an additional specimen after the refusal.

## Issues

1. Whether **WORST MOVIE EVER!** functions as a trademark for Moriarty’s identified Class 9 parody film goods, or instead is a commonplace informational/evaluative phrase that **fails to function** as a mark under Trademark Act §§ 1, 2, 3, and 45.

## Decision

- The TTAB **affirmed** the refusal to register WORST MOVIE EVER!.
- The Board found that consumers would understand the wording primarily as an ordinary, familiar expression conveying the message that a movie is extremely bad, not as a designation of source.
- The Board relied on record evidence showing widespread third-party use of “worst movie ever” (and close variants) in media and online commentary as an evaluative phrase.
- The Board determined that Moriarty’s use, as shown by the specimen(s) of record, did not present the wording in a manner that would cause consumers to view it as a brand name for the goods.
- The Board rejected consideration of a late-submitted specimen and decided the case on the properly submitted record.
- The refusal was sustained as an ex parte “failure to function” refusal; the opinion was issued as **not precedential**.

## Legal Principles

- Registration is available only for designations that **function as trademarks**, meaning they identify and distinguish the applicant’s goods and indicate a single source.
- A term or phrase **fails to function** when the relevant public would perceive it as an informational statement, familiar expression, or common slogan rather than as a source indicator.
- The main question is **consumer perception**, evaluated from the record as a whole, including specimens and evidence showing how the designation is used in the marketplace.
- Widespread third-party use of the same wording to convey an ordinary message makes it less likely that consumers will view the wording as a mark.
- Common expressions that merely convey sentiment or evaluation are generally not registrable on the Principal Register without evidence that the public has come to recognize them as indicating source.

## Conclusion

In *In re Donald E. Moriarty*, the TTAB affirmed the USPTO’s refusal to register WORST MOVIE EVER! for parody films because the record showed the phrase is widely used as ordinary commentary on movie quality and would be seen by consumers as an evaluative slogan, not as a source-identifying trademark under Trademark Act §§ 1, 2, 3, and 45.


In re Donald E. Moriarty, 2020 TTAB LEXIS 507 (2020)