HOT GIRL SEMESTER TTAB Applicant Brief Final.Pdf(4323404 Bytes ) Appealed Class Class 009

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Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov ESTTA Tracking number: ESTTA1131700 Filing date: 05/05/2021

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 88631285 Applicant Hot Girl Trademark Holdings, LLC Applied for Mark HOT GIRL SEMESTER Correspondence WILLIAM A WOOTEN Address WOOTEN LAW OFFICE 120 COURT SQUARE EAST COVINGTON, TN 38019 UNITED STATES Primary Email: [email protected] Secondary Email(s): [email protected], [email protected], [email protected] 901-475-1050

Submission Applicant's brief Attachments HOT GIRL SEMESTER TTAB Applicant Brief Final.pdf(4323404 bytes ) Appealed class Class 009. First Use: 0 First Use In Commerce: 0 All goods and services in the class are appealed, namely: Musical sound recordings; audio-visual recordings, namely, compact discs, phonograph records, DVDs and downloadable MP3recordings, all featuring music and sound tracks; downloadable musical sound recordings; downloadable video recordings featuring music; magnets; decorative magnets; novelty magnets; mouse pads; compact disc cases and covers in the nature of sleeves; fitted carrying cases for storage and transportation, namely, cases for compact discs, tablet computers, mobile phones and cellular phones; protective covers and cases for cell phones, laptops and portable media players; downloadable music files, ring tones, master ring tones, ringback tones, graphics, and electronic game software via the in- ternetand wireless devices; downloadable wireless entertainment, namely, ring tones, master ring tones, ringback tones, screen savers software, images for use as screen savers and wallpaper for mobile phones Filer's Name R. Dale Hutcherson Filer's email [email protected], [email protected], wa- [email protected], [email protected] Signature /R. Dale Hutcherson/ Date 05/05/2021 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

Serial Nos. 88631285, 88631287, 88631290

Mark: HOT GIRL SEMESTER

Applicant: Hot Girl Trademark Holdings, LLC

Examining Attorney: Katherine S. Chang Law Office 115

APPLICANT’S EX PARTE APPEAL BRIEF

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 1 TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………………………………………4

STATEMENT OF FACTS & PROSECUTION HISTORY…………………………………..5

SUMMARY OF EVIDENCE……………………………………………………………………9

ARGUMENT……………………………………………………………………………………11

A. Applicant’s Mark Functions as a Source Identifier……………………………………...11

B. Evidence in the Marketplace…………………………………………………………….21

C. The HOT GIRL SEMESTER Phrase Was Non-Existent Prior to Applicant……………24

CONCLUSION…………………………………………………………………………………26

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Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 2 TABLE OF CONTENTS (cont.)

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Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 3 TABLE OF AUTHORITIES

Cases

D.C. Wholesaler, Inc. v. Chien, 120 USPQ2d 1710, 1713 (TTAB 2016)

In re Bose Corp., 546 F.2d 893, 192 USPQ 213, 215 (CCPA 1976) In re Standard Oil Co., 275 F.2d 945, 125 USPQ 227 (CCPA 1960)

In re Boston Beer Co., 47 USPQ2d 1914 (TTAB 1998), aff’d, 198 F.3d 1370, 53 USPQ2d 1056 (Fed. Cir. 1999)

In re Champion Int’l Corp., 183 USPQ 318 (TTAB 1974)

In re Clairol Inc., 173 USPQ 355, 457 F.2d 509 (CCPA 1972)

In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229 (TTAB 2010)

In re Merrill Lynch, Pierce, Fenner, and Smith Inc., 4 USPQ2d 1141, 1143 (Fed. Cir. 1987)

In re Morganroth, 208 USPQ 284 (TTAB 1980)

In re Paramount Pictures Corporation, 213 USPQ 1111, 1115 (TTAB 1982)

In re Remington Products Inc., 3 USPQ2d 1714, 1715 (TTAB 1987)

In re The Signal Companies, Inc., 228 USPQ 956, 957 (TTAB 1986)

In re Trek 2000, 97 USPQ2d 1106 (TTAB 2010)

In re Volvo Cars of North America Inc., 46 USPQ2d 1455, 1459 (TTAB 1998)

In re Waverly Inc., 27 USPQ2d 1620, 1623 (TTAB 1993)

Maidenform, Inc. v. Munsingwear, Inc., 195 U.S.P.Q. 297 (S.D.N.Y. 1977)

Plastilite Corp. v. Kassnar Imports, 508 F.2d 824, 184 USPQ 348, 350 (CCPA 1975)

Statutes and Rules

Trademark Act § 45, 15 U.S.C. § 1127

Trademark Act § 2, 15 U.S.C. § 1052

TMEP § 1202.03

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 4 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD In re Application of ) Hot Girl Trademark Holdings, LLC ) Examining Attorney: Katherine S. Chang Application Serial Nos.: ) 88631285, 88631287, 88631290 ) Law Office 115 Filed: September 25, 2019 ) For: HOT GIRL SEMESTER )

UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451

APPLICANT’S EX PARTE APPEAL BRIEF

Pursuant to a Notice of Appeal filed with the Trademark Trial and Appeal Board on

February 8, 2021, the Applicant, Hot Girl Trademark Holdings, LLC (“Applicant”), hereby

appeals from the Examining Attorney’s final refusal and reconsideration letter denying registration

of the above-identified marks, dated March 1, 2021, and respectfully requests that the Trademark

Trial and Appeal Board reverse the Examining Attorney’s decision on the grounds that the

Applicant’s marks function as a source identifier and, therefore, function as a trademark worthy of

registration on the principal register.

STATEMENT OF FACTS & PROSECUTION HISTORY

Applicant is an entity owned and operated by a world-famous individual, Megan Pete, famously known in the marketplace as “Megan Thee Stallion” and “Hot Girl Meg” related to her music and entertainment career as well as her well-known and admired personas. Applicant has obtained world-renowned notoriety in regard to her “Hot Girl” persona and is perceived by the relevant public as the sole source and creator of all things “Hot Girl.” Applicant has further obtained Notices of Allowance on various other HOT GIRL-related marks, including, HOT GIRL

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 5 MEG (Trademark Serial No. 88631261), HOT GIRL SUMMER (Trademark Registration Nos.

88631278 and 88631279 in international classes 038 and 041), HOT GIRL SEMESTER

(Trademark Registration No. 88631293 and 88631297 in international classes 038 and 041),

REAL HOT GIRL SHIT (Trademark Serial No. 88720351) as well as publication of HOT GIRL,

I DO HOT SHIT (Trademark Serial No. 88957514).

Applicant now seeks registration on the Principal Register of its mark(s), HOT GIRL

SEMESTER, for “magnets; decorative magnets; novelty magnets; mouse pads; compact disc

cases and covers; fitted carrying cases for storage and transportation, namely, cases for compact

discs, tablet computers, mobile phones and cellular phones; protective covers and cases for cell

phones, laptops and portable media players; downloadable wireless entertainment, namely,

screen savers and images and wallpaper” in International Class 009 (a partial refusal—other goods that were not refused in international class 009 include, “Musical sound recordings; audio-visual recordings, namely, compact discs, phonograph records, DVDs and downloadable MP3 recordings, all featuring music and sound tracks; downloadable musical sound recordings; downloadable video recordings featuring music; downloadable music files, ring tones, master ring tones, ringback tones, graphics, and electronic game software via the internet and wireless devices; downloadable wireless entertainment, namely, ring tones, master ring tones, ringback tones”),

“Posters; calendars; temporary tattoo transfers; iron-on and plastic transfers; printed sheet music; postcards; scrapbooks; stationery; note pads; desk pads; bookmarks; address and appointment books; daily planners; autograph books; desk top and personal organizers; organizers for stationery use; stationery-type portfolios; book markers; money clips; holders for desk accessories; holders for writing utensils; letter openers; pen and pencil holders; pens; pencils; extensions and attachments for pencils; pen and pencil sets; highlighting pens and

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 6 markers; erasers; drawing rulers; pencil sharpeners; bookends; book covers; checkbook covers; coin and photograph albums; brag books; leather book covers; decorative paper centerpieces and pencil-top ornaments; globes; paperweights; coasters made of paper; clip boards; printed holograms; tour books, namely, books in the field of entertainment tours; printed concert programs; event programs and albums” in International Class 016, and “Clothing, namely, shirts, long-sleeved shirts, t-shirts, undershirts, night shirts, rugby shirts, polo shirts, jerseys, cardigans, bottoms, pants, shorts, boxer shorts, tops, tank tops, tankinis, sweat shirts, hooded sweat shirts, sweat jackets, sweat shorts, sweat pants, sweaters, vests, pullovers, jackets, turtlenecks, swimwear, beachwear, caps being headwear, hats, visors being headwear, headbands, wrist bands as clothing, sweat bands, headwear, ear muffs, aprons, scarves, belts, bandanas, neckwear, neck bands, underwear, briefs, singlets, socks, loungewear, robes, underclothes, pajamas, sleepwear, gloves, rainwear, footwear, shoes, flip-flops, and slippers” in International Class 025 (hereinafter collectively referred to as the “Application”). The three separate trademark applications were filed on September 25, 2019 and received U.S. Trademark Application Serial Nos. 88631285, 88631287 and 88631290.

The Examining Attorney refused registration of Applicant’s mark(s), HOT GIRL

SEMESTER, in an Office Action dated October 18, 2019, contending that the mark failed to function as a trademark under Trademark Act Sections 1, 2, 3 and 45 based on the allegation that the proposed mark is a commonplace phrase; that Applicant must amend the identification of goods; that there are multi-class application requirements; that Applicant must provide its address; that an acceptable Declaration must be submitted; and that there was a prior pending application.

In the Applicant’s response to the initial refusal to register dated July 13, 2020, the

Applicant argued that the Application did function as a trademark, namely that the HOT GIRL

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 7 SEMESTER mark was perceived by the public as identifying and distinguishing the source of

Applicant’s goods and services. Applicant further argued that, based on Applicant’s fame and status associated with the applied-for mark, there is only one identifying source for Applicant’s

HOT GIRL SEMESTER mark, as proven in the various exhibits and sources put forth by

Applicant. Applicant also responded accordingly to the other named grounds for refusal.

The Examining Attorney further expounded their position in a Final Office Action, dated

August 7, 2020, maintaining that the Application failed to function as a trademark, with said refusal being made final. The Examining Attorney accepted all other grounds for refusal and entered them into the application record, including the potential 2(d) prior pending application refusal. Thus, the only remaining outstanding issue made final is the Examining Attorney’s refusal regarding

Trademark Act Sections 1, 2, 3 and 45 for failure to function based on the Examining Attorney’s allegation that the proposed mark is a widely used commonplace phrase.

In response thereto, the Applicant requested reconsideration of the Examining Attorney’s final refusal on February 8, 2021, by citing multiple well-known and famous third-party sources which give credit to Applicant as the source of the HOT GIRL SEMESTER mark as evidence of registrability and that Applicant is the sole emanating source of the mark as would be perceived by the relevant public. Applicant also provided further arguments based on precedential proceedings in favor of Applicant’s position that the Application and HOT GIRL SEMESTER mark functions as a source identifier. Additionally, the Applicant provided arguments regarding the marketplace evidence provided by the Examining Attorney, which further proved that

Applicant is the sole emanating source associated with the HOT GIRL SEMESTER mark.

Finally, the Examining Attorney denied Applicant’s requests for reconsideration on March

1, 2021, finding that Applicant’s additional support and arguments neither resolved all outstanding

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 8 issues nor raised a new issue or provided compelling evidence as to any outstanding issues.

Applicant now appeals the Examining Attorney’s denial of Applicant’s request for reconsideration

and states as follows.

SUMMARY OF EVIDENCE

A. Evidence Offered by Examining Attorney

Office Action of October 18, 2019

Final Office Action of August 7, 2020

Reconsideration Letter of March 1, 2021

B. Evidence Offered by Applicant

Exhibit 1: Screenshot from Shruti Mishra, How ‘hot girl summer’ turned to ‘hot girl semester’ and how you can participate, THE MIAMI HURRICANE (Sept. 16, 2019), https://www.themiamihurricane.com/2019/09/16/how-hot-girl-summer-turned-to-hot-girl- semester-and-how-you-can-participate/, accessed July 13, 2020.

Exhibit 2: Screenshot from Shruti Mishra, How ‘hot girl summer’ turned to ‘hot girl semester’ and how you can participate, THE MIAMI HURRICANE (Sept. 16, 2019), https://www.themiamihurricane.com/2019/09/16/how-hot-girl-summer-turned-to-hot-girl- semester-and-how-you-can-participate/, accessed July 13, 2020.

Exhibit 3: Screenshot from Shruti Mishra, How ‘hot girl summer’ turned to ‘hot girl semester’ and how you can participate, THE MIAMI HURRICANE (Sept. 16, 2019), https://www.themiamihurricane.com/2019/09/16/how-hot-girl-summer-turned-to-hot-girl- semester-and-how-you-can-participate/, accessed July 13, 2020.

Exhibit 4: Screenshot from Shruti Mishra, How ‘hot girl summer’ turned to ‘hot girl semester’ and how you can participate, THE MIAMI HURRICANE (Sept. 16, 2019), https://www.themiamihurricane.com/2019/09/16/how-hot-girl-summer-turned-to-hot-girl- semester-and-how-you-can-participate/, accessed July 13, 2020.

Exhibit 5: Screenshot from Jazmine A. Ortiz, Class Is In Session: Megan Thee Stallion Breaks Down ‘Hot Girl Semester’ Rules Including A Business Casual Dress Code, BET (Aug. 27, 2019), https://www.bet.com/style/living/2019/08/27/megan-thee-stallion-s-hot-girl-semester- tips-for-back-to-school.html, accessed July 13, 2020.

Exhibit 6: Screenshot from Jazmine A. Ortiz, Class Is In Session: Megan Thee Stallion Breaks Down ‘Hot Girl Semester’ Rules Including A Business Casual Dress Code, BET (Aug. 27,

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 9 2019), https://www.bet.com/style/living/2019/08/27/megan-thee-stallion-s-hot-girl-semester- tips-for-back-to-school.html, accessed July 13, 2020.

Exhibit 7: Screenshot from Jazmine A. Ortiz, Class Is In Session: Megan Thee Stallion Breaks Down ‘Hot Girl Semester’ Rules Including A Business Casual Dress Code, BET (Aug. 27, 2019), https://www.bet.com/style/living/2019/08/27/megan-thee-stallion-s-hot-girl-semester- tips-for-back-to-school.html, accessed July 13, 2020.

Exhibit 8: Screenshot from Jazmine A. Ortiz, Class Is In Session: Megan Thee Stallion Breaks Down ‘Hot Girl Semester’ Rules Including A Business Casual Dress Code, BET (Aug. 27, 2019), https://www.bet.com/style/living/2019/08/27/megan-thee-stallion-s-hot-girl-semester- tips-for-back-to-school.html, accessed July 13, 2020.

Exhibit 9: Screenshot from Jazmine A. Ortiz, Class Is In Session: Megan Thee Stallion Breaks Down ‘Hot Girl Semester’ Rules Including A Business Casual Dress Code, BET (Aug. 27, 2019), https://www.bet.com/style/living/2019/08/27/megan-thee-stallion-s-hot-girl-semester- tips-for-back-to-school.html, accessed July 13, 2020.

Exhibit 10: Screenshot from Jazmine A. Ortiz, Class Is In Session: Megan Thee Stallion Breaks Down ‘Hot Girl Semester’ Rules Including A Business Casual Dress Code, BET (Aug. 27, 2019), https://www.bet.com/style/living/2019/08/27/megan-thee-stallion-s-hot-girl-semester- tips-for-back-to-school.html, accessed July 13, 2020.

Exhibit 11: Screenshot from Bianca Nieves, Your Guide to Having a Hot Girl Semester, TEEN VOGUE (Aug. 28, 2019), https://www.teenvogue.com/story/megan-thee-stallion-hot-girl- semester-fall-guide, accessed July 13, 2020, 2020.

Exhibit 12: Screenshot from Bianca Nieves, Your Guide to Having a Hot Girl Semester, TEEN VOGUE (Aug. 28, 2019), https://www.teenvogue.com/story/megan-thee-stallion-hot-girl- semester-fall-guide, accessed July 13, 2020, 2020.

Exhibit 13: Screenshot from Bianca Nieves, Your Guide to Having a Hot Girl Semester, TEEN VOGUE (Aug. 28, 2019), https://www.teenvogue.com/story/megan-thee-stallion-hot-girl- semester-fall-guide, accessed July 13, 2020, 2020.

Exhibit 14: Screenshot from Bianca Nieves, Your Guide to Having a Hot Girl Semester, TEEN VOGUE (Aug. 28, 2019), https://www.teenvogue.com/story/megan-thee-stallion-hot-girl- semester-fall-guide, accessed July 13, 2020, 2020.

Exhibit 15: Screenshot from Faima Bakar, Hot Girl Semester is the new Hot Girl Summer so are you ready to boss it?, METRO (Sept. 1, 2019 at 12:29 PM), https://metro.co.uk/2019/09/01/hot- girl-semester-is-the-new-hot-girl-summer-so-are-you-ready-to-boss-it-10665675/, accessed July 13, 2020.

Exhibit 16: Screenshot from Faima Bakar, Hot Girl Semester is the new Hot Girl Summer so are you ready to boss it?, METRO (Sept. 1, 2019 at 12:29 PM), https://metro.co.uk/2019/09/01/hot-

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 10 girl-semester-is-the-new-hot-girl-summer-so-are-you-ready-to-boss-it-10665675/, accessed July 13, 2020.

Exhibit 17: Screenshot from Faima Bakar, Hot Girl Semester is the new Hot Girl Summer so are you ready to boss it?, METRO (Sept. 1, 2019 at 12:29 PM), https://metro.co.uk/2019/09/01/hot- girl-semester-is-the-new-hot-girl-summer-so-are-you-ready-to-boss-it-10665675/, accessed July 13, 2020.

Exhibit 18: Screenshot from Faima Bakar, Hot Girl Semester is the new Hot Girl Summer so are you ready to boss it?, METRO (Sept. 1, 2019 at 12:29 PM), https://metro.co.uk/2019/09/01/hot- girl-semester-is-the-new-hot-girl-summer-so-are-you-ready-to-boss-it-10665675/, accessed July 13, 2020.

Exhibit 19: Screenshot from Lia McGarrigle, Megan Thee Stallion Is Getting Us Ready for Back to School Season with Hot Girl Semester, HIGHSNOBIETY (Sept. 2, 2019), https://www.highsnobiety.com/p/megan-thee-stallion-hot-girl-semester/, accessed July 13, 2020.

Exhibit 20: Screenshot from Lia McGarrigle, Megan Thee Stallion Is Getting Us Ready for Back to School Season with Hot Girl Semester, HIGHSNOBIETY (Sept. 2, 2019), https://www.highsnobiety.com/p/megan-thee-stallion-hot-girl-semester/, accessed July 13, 2020.

Exhibit 21: Screenshot from Lia McGarrigle, Megan Thee Stallion Is Getting Us Ready for Back to School Season with Hot Girl Semester, HIGHSNOBIETY (Sept. 2, 2019), https://www.highsnobiety.com/p/megan-thee-stallion-hot-girl-semester/, accessed July 13, 2020.

Exhibit 22: Screenshot from INSTAGRAM, @theestallion, https://www.instagram.com/theestallion/, accessed February 8, 2021.

Exhibit 23: Screenshot from TWITTER, @theestallion, https://twitter.com/theestallion, accessed February 8, 2021.

Exhibit 24: Screenshot from TWITTER, @TheeStallion, twitter.com/theestallion/status/1128813987821510657?s=20, accessed May 4, 2021.

Exhibit 25: Screenshot from GOOGLE Trends, search “Hot Girl Semester”, https://trends.google.com/trends/explore?date=2019-01-01%202021-02- 16&geo=US&q=hot%20girl%20semester, accessed May 5, 2021.

ARGUMENT

A. Applicant’s Mark Functions as a Source Identifier

Section 45 of the Trademark Act, 15 U.S.C. § 1127, states that the term “trademark” includes “any word, name, symbol, or device, or any combination thereof . . . used by a person, or

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 11 which a person has a bona fide intention to use in commerce and applied to register on the principal

product, from those manufactured or sold by others to indicate the source of the goods, even if that

source is unknown.” Section 45 also defines a “service mark” as “any word, name, symbol, or

device, or any combination thereof . . . used by a person . . . to identify and distinguish the services

of one person, including a unique service, from the services of others and to indicate the source of

the services even if that source is unknown.”

In the case of a denial based on “failure to function”, as is the case sub judice, the critical inquiry is how the relevant public perceives or will perceive the term sought to be registered. For determining whether Applicant’s HOT GIRL SEMESTER mark functions as a trademark, we must keep in mind that, in order to be registrable, the term must be perceived by the purchasing public as identifying and distinguishing the source of the goods. Section 2 of the Trademark Act, 15

U.S.C. § 1052. “The Trademark Act is not an act to register mere words, but rather to register trademarks. Before there can be registration, there must be a trademark, and unless words have been so used, they cannot qualify.” In re Bose Corp., 546 F.2d 893, 192 USPQ 213, 215 (CCPA

1976), citing In re Standard Oil Co., 275 F.2d 945, 125 USPQ 227 (CCPA 1960). Applicant would

further agree that not every word or combination of words which appears on or in connection with

an entity’s goods and services functions as a trademark. In re Boston Beer Co., 47 USPQ2d 1914

(TTAB 1998), aff’d, 198 F.3d 1370, 53 USPQ2d 1056 (Fed. Cir. 1999); In re Morganroth, 208

USPQ 284 (TTAB 1980).

As stated in Applicant’s previous responses in regard to determining a source indicator for

a mark, under the relevant statute, ““[m]atter that serves primarily as a source indicator, either

inherently or as a result of acquired distinctiveness . . . can be registered as a trademark.” TMEP

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 12 § 1202.03. According to D.C. One Wholesaler, Inc. v. Chien, “the critical inquiry in determining

whether a designation functions as a mark is how the designation would be perceived by the

relevant public.” D.C. Wholesaler, Inc. v. Chien, 120 USPQ2d 1710, 1713 (TTAB 2016). Further,

“in every case, the question is . . . whether the matter sought to be registered performs the function

of a trademark by signifying to purchasers the source of the goods sold or offered for sale.” In re

Paramount Pictures Corporation, 213 USPQ 1111, 1115 (TTAB 1982). “It is the association of

the mark with a particular source by the ultimate consumers which is to be measured . . .” Plastilite

Corp. v. Kassnar Imports, 508 F.2d 824, 184 USPQ 348, 350 (CCPA 1975). Finally, “to be a mark, the phrase must be used in a manner calculated to project to purchasers or potential purchasers a single source or origin for the goods.” See D.C. Wholesaler (citing In re Volvo Cars of North

America Inc., 46 USPQ2d 1455, 1459 (TTAB 1998)). According to the case law and statutes

cited, the main inquiry for making a determination of trademark functionality is “the impression

the term or phrase makes on the relevant public” and whether consumers can point to the word,

term, or phrase back to a single source or origin of the applied-for mark. See In re Volvo Cars of

North America, Inc., 46 USPQ2d 1455, 1458 (TTAB 1998). “The question whether the subject

matter of an application for registration functions as a mark is determined by examining the

specimens along with any other relevant material submitted by applicant during prosecution of the

application.” In re The Signal Companies, Inc., 228 USPQ 956, 957 (TTAB 1986).

Thus, based on the above, there appears to be two distinct and clear elements to determine

functionality of a trademark: (1) Applicant must use the mark in a manner calculated to project to

consumers a single source or origin for the goods/services; and (2) consumers and potential

consumers must associate the mark with a particular source and/or origin as the source indicator.

The critical inquiry here is whether HOT GIRL SEMESTER would be perceived as a source

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 13 indicator or merely an informational phrase. In re Remington Products Inc., 3 USPQ2d 1714, 1715

(TTAB 1987). If a mark can be pointed towards a source indicator in the minds of consumers in

the applicable market, the mark can thus function as a trademark and is not necessarily considered

a “commonplace phrase.”

Here, Applicant submits that its intended use of the HOT GIRL SEMESTER mark will be used (and currently is used) in a manner calculated to project to purchasers and/or potential purchasers a single source or origin for the goods/services. As indicated in the argument(s) asserted by Applicant in previous responses, there is a clear source of origin for the “HOT GIRL

SEMESTER” mark that is well known by a large and sophisticated consumer base who connects the mark directly to Applicant as the sole emanating source, and therefore, the HOT GIRL

SEMESTER mark has a distinguished source/origin, functions as a trademark, and cannot be labeled as a commonplace or informational phrase.

The Examining Attorney has issued a refusal of Applicant’s mark based on a failure to function as a trademark, which means the HOT GIRL SEMESTER mark cannot act as an identifier of Applicant’s various applied-for goods in international classes 009, 016 and 025 (though it has been determined that the HOT GIRL SEMESTER mark can function as an identifier of Applicant’s

downloadable music and entertainment services in international classes 038 and 041—see

Trademark Application Serial Numbers 88631293 and 88631297). For an Examining Attorney to

declare that such a phrase cannot act as a source identifier, the evidence must be overwhelming in

favor of such a determination. See In re Trek 2000, 97 USPQ2d 1106 (TTAB 2010). Therefore, a

very high standard of proof is required for the USPTO to establish that Applicant’s mark fails to

function as a mark. Id. Additionally, when there is a “mixture of evidence” between the Office

Action(s) and Applicant, that mixture of evidence would not rise to the required clear evidence

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 14 standard showing that the phrase is incapable of trademark protection. See In re Merrill Lynch,

Pierce, Fenner, and Smith Inc., 4 USPQ2d 1141, 1143 (Fed. Cir. 1987). Further, any doubt

regarding a failure to function should be resolved in Applicant’s favor. See In re Waverly Inc., 27

USPQ2d 1620, 1623 (TTAB 1993).

The Examining Attorney stated in the Office Action, that consumers “would not perceive

it [HOT GIRL SEMESTER] as a mark identifying the source of Applicant’s goods but rather as

only conveying an informational message.” See Office Action of October 18, 2019. However,

Applicant respectfully and strongly disagrees with this analysis. Rather, Applicant is the clear and distinguishable source and origin for the HOT GIRL SEMESTER mark and all goods/services associated with the mark. Applicant, famously known as “Megan Thee Stallion”, “Hot Girl Meg” and other alter egos, has been well-known as the source of “HOT GIRL SEMESTER” since approximately Summer/Fall 2019 or earlier. Further, Applicant is known as the “Hot Girl” and for all “Hot Girl”-related trends, goods, services, music, etc. See Exhibits 1, 2, 3 and 4, Screenshot from Shruti Mishra, How ‘hot girl summer’ turned to ‘hot girl semester’ and how you can participate, THE MIAMI HURRICANE (Sept. 16, 2019), https://www.themiamihurricane.com/2019/09/16/how-hot-girl-summer-turned-to-hot-girl- semester-and-how-you-can-participate/, accessed July 13, 2020 (quoting Applicant: “‘Being a hot girl is a lifestyle,’ she said. ‘Everyone knows I’m still in college, [so] it’s gonna be a real hot girl semester . . .’”). Further, as can be seen on TeenVogue.com, Applicant is the single source from which this “HOT GIRL SEMESTER” term emanates, and Applicant is the origin and reason for widespread use of the phrase/term. See Exhibits 11, 12, 13 and 14, Screenshots from Bianca

Nieves, Your Guide to Having a Hot Girl Semester, TEEN VOGUE (Aug. 28, 2019),

https://www.teenvogue.com/story/megan-thee-stallion-hot-girl-semester-fall-guide, accessed July

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 15 13, 2020, 2020 (“Being a hot girl à la Megan Thee Stallion is a state of mind. It's seasonless. Yes,

the Houston rapper made the phrase Hot Girl Summer go viral well, in summer. But now, if you don't want to leave your hot girl antics behind and channel them into your academics (plus, you want a timely IG caption), the Texas Southern University Junior and VMA award winner has taken her signature motto and made it academia-friendly. Welcome into your vocabularies and life: Hot

Girl Semester.”). Applicant has even been credited as the origin of the phrase by major news and media publications. See Exhibits 5, 6, 7, 8, 9 and 10, Screenshots from Jazmine A. Ortiz, Class Is

In Session: Megan Thee Stallion Breaks Down ‘Hot Girl Semester’ Rules Including A Business

Casual Dress Code, BET (Aug. 27, 2019), https://www.bet.com/style/living/2019/08/27/megan- thee-stallion-s-hot-girl-semester-tips-for-back-to-school.html, accessed July 13, 2020 (“Megan

Thee Stallion is letting folks know just because it’s back-to-school season, doesn’t mean the hot girls are going anywhere! The “Big Ole Freak” rapper did a Twitter takeover yesterday (Aug. 27) and shared her ‘Hot Girl Semester’ tips. . . . Megan’s tips to having a successful ‘Hot Girl Semester

. . .’”); see also Exhibits 15, 16, 17 and 18, Screenshots from Faima Bakar, Hot Girl Semester is

the new Hot Girl Summer so are you ready to boss it?, METRO (Sept. 1, 2019 at 12:29 PM),

https://metro.co.uk/2019/09/01/hot-girl-semester-is-the-new-hot-girl-summer-so-are-you-ready- to-boss-it-10665675/, accessed July 13, 2020 (“Hot Girl Semester is all about channeling the bad b*tch summer vibes as you go back to school/work/ordinary lives. Once again, it was coined by none other than Megan Thee Stallion [Applicant], who’s ushering in the new era of boss moves.”);

Exhibits 19, 20 and 21, Screenshots from Lia McGarrigle, Megan Thee Stallion Is Getting Us

Ready for Back to School Season with Hot Girl Semester, HIGHSNOBIETY (Sept. 2, 2019), https://www.highsnobiety.com/p/megan-thee-stallion-hot-girl-semester/, accessed July 13, 2020

(“Hot Girl Summer may be officially over, but Megan Thee Stallion isn’t leaving us empty-handed

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 16 for fall. On Saturday, the artist shared a video of herself finishing off her homework before going

to a party, alongside the hashtag #HotGirlSemester”). As can further be seen in images below,

Applicant has a very large audience and following on social media where Applicant’s “HOT GIRL

SEMESTER” mark first became famous and where targeted consumers can clearly see that

Applicant is the originating source for the “HOT GIRL SEMESTER” mark. See Exhibit 22,

INSTAGRAM, @theestallion, https://www.instagram.com/theestallion/, accessed February 8, 2021;

see also Exhibit 23, TWITTER, @theestallion, https://twitter.com/theestallion, accessed February

8, 2021. As demonstrated by Applicant’s social media pages, Applicant has over 20 million

followers/fans. Finally, after performing a simple Google search using “Hot Girl Semester” or

“Hot Girl Semester meaning”, it is clear that the “HOT GIRL SEMESTER” mark is solely

associated with and originates from Applicant, Megan Thee Stallion a/k/a Hot Girl Meg.

The Examining Attorney also rejected the Application on the basis that “the applied-for

mark is a phrase that does not function as a trademark to indicate the source of applicant’s goods

and to identify and distinguish them from the goods of others.” See Office Action of October 18,

2019. The Examining Attorney goes on to state that “the applied-for mark is a commonplace phrase

that is used by a variety of sources and that merely conveys a familiar and well-recognized

concept,” while referencing certain cases including In re Volvo Cars of N. Am., Inc. as well as In

re Remington Prods., Inc. See Office Action of October 18, 2019. Finally, the Examining Attorney

argued that:

This phrase is commonly used to refer to women working hard in school after having a fun summer. Because consumers are accustomed to seeing this term or expression commonly used in everyday speech by many different sources, they would not perceive it as a mark identifying the source of applicant’s goods but rather as only conveying an informational message.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 17 See Office Action of October 18, 2019. However, Applicant respectfully disagrees with the

Examining Attorney on all counts.

As stated earlier, the primary inquiry to determine trademark functionality is whether the

mark is associated with a particular source by the ultimate consumer. See In re Volvo Cars, 46

USPQ2d 1455, 1459 (TTAB 1998); see also D.C. Wholesaler, Inc., 120 USPQ2d 1710; In re

Paramount Pictures Corporation, 213 USPQ 1111, 1115 (TTAB 1982); Plastilite Corp. v.

Kassnar Imports, 508 F.2d 824, 184 USPQ 348, 350 (CCPA 1975). In each of those cited cases,

even if the trademark was denied, the applied-for mark was denied due to there being a lack of a

clear, distinguishable source of the phrase and/or term used in the mark. “To be a mark, the phrase

must be used in a manner calculated to project to purchasers or potential purchasers a single source

or origin for the goods.” See D.C. Wholesaler (citing In re Volvo Cars of North America Inc., 46

USPQ2d 1455, 1459 (TTAB 1998)). “In every case, the question is . . . whether the matter sought

to be registered performs the function of a trademark by signifying to purchasers the source of the

goods sold or offered for sale.” In re Paramount Pictures Corporation, 213 USPQ 1111, 1115

(TTAB 1982). “It is the association of the mark with a particular source by the ultimate consumers which is to be measured . . .” Plastilite Corp. v. Kassnar Imports, 508 F.2d 824, 184 USPQ 348,

350 (CCPA 1975).

Sub judice, Applicant has easily met the requirements as stated in the case law based on the numerous news articles, search results and other evidence provided herein. As such, Applicant respectfully disagrees that Applicant’s HOT GIRL SEMESTER mark fails to function as a trademark and is a commonplace term without a source of origin. Applicant further avers that the very definition used by the USPTO Examining Attorney to define the HOT GIRL SEMESTER

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 18 mark is rooted in Applicant’s own words and can be pointed back to Applicant as the singular

source of the phrase/mark based on the various exhibits and proof provided herein.

In this case, it is clear that there is a distinguishable source of origin that consumers and

purchasers associate with the HOT GIRL SEMESTER mark. See Exhibits 1-21. Applicant uses

the mark in a manner calculated to project to her fans/followers and all consumers/potential

purchasers that Applicant is the single source of origin for the mark. Applicant’s use of the HOT

GIRL SEMESTER mark and widespread and well-known marketing campaigns signify to consumers that the HOT GIRL SEMESTER mark is attributable to Applicant. Applicant has millions of fans and followers that perceive and associate HOT GIRL SEMESTER solely with

Applicant, and Applicant has projected this perception continuously through marketing and advertising to all consumers and potential consumers via interviews, news stories and social media.

Further, as previously stated, there are multiple well-known sources and media outlets that have written various articles regarding HOT GIRL SEMESTER and its association with Applicant. See

Exhibits 1, 2, 3 and 4, Screenshots from Shruti Mishra, How ‘hot girl summer’ turned to ‘hot girl semester’ and how you can participate, THE MIAMI HURRICANE (Sept. 16, 2019),

https://www.themiamihurricane.com/2019/09/16/how-hot-girl-summer-turned-to-hot-girl-

semester-and-how-you-can-participate/, accessed July 13, 2020 (quoting Applicant: “‘Being a hot

girl is a lifestyle,’ she said. ‘Everyone knows I’m still in college, [so] it’s gonna be a real hot girl

semester . . .’”); see also Exhibits 11, 12, 13 and 14, Screenshots from Bianca Nieves, Your Guide to Having a Hot Girl Semester, TEEN VOGUE (Aug. 28, 2019),

https://www.teenvogue.com/story/megan-thee-stallion-hot-girl-semester-fall-guide, accessed July

13, 2020, 2020 (“Being a hot girl à la Megan Thee Stallion is a state of mind. It's seasonless. Yes,

the Houston rapper made the phrase Hot Girl Summer go viral well, in summer. But now, if you

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 19 don't want to leave your hot girl antics behind and channel them into your academics (plus, you

want a timely IG caption), the Texas Southern University Junior and VMA award winner has taken

her signature motto and made it academia-friendly. Welcome into your vocabularies and life: Hot

Girl Semester.”); Exhibits 5, 6, 7, 8, 9 and 10, Screenshots from Jazmine A. Ortiz, Class Is In

Session: Megan Thee Stallion Breaks Down ‘Hot Girl Semester’ Rules Including A Business

Casual Dress Code, BET (Aug. 27, 2019), https://www.bet.com/style/living/2019/08/27/megan- thee-stallion-s-hot-girl-semester-tips-for-back-to-school.html, accessed July 13, 2020 (stating that

Applicant creates the rules for having a “Hot Girl Semester” and “Megan Thee Stallion is letting folks know just because it’s back-to-school season, doesn’t mean the hot girls are going anywhere!

The “Big Ole Freak” rapper did a Twitter takeover yesterday (Aug. 27) and shared her ‘Hot Girl

Semester’ tips. . . . Megan’s tips to having a successful ‘Hot Girl Semester . . .’”); Exhibits 15, 16,

17 and 18, Screenshots from Faima Bakar, Hot Girl Semester is the new Hot Girl Summer so are you ready to boss it?, METRO (Sept. 1, 2019 at 12:29 PM), https://metro.co.uk/2019/09/01/hot- girl-semester-is-the-new-hot-girl-summer-so-are-you-ready-to-boss-it-10665675/, accessed July

13, 2020 (“Hot Girl Semester is all about channeling the bad b*tch summer vibes as you go back to school/work/ordinary lives. Once again, it was coined by none other than Megan Thee Stallion

[Applicant], who’s ushering in the new era of boss moves.”); Exhibits 19, 20 and 21, Screenshots from Lia McGarrigle, Megan Thee Stallion Is Getting Us Ready for Back to School Season with

Hot Girl Semester, HIGHSNOBIETY (Sept. 2, 2019), https://www.highsnobiety.com/p/megan- thee-stallion-hot-girl-semester/, accessed July 13, 2020 (“Hot Girl Summer may be officially over, but Megan Thee Stallion isn’t leaving us empty-handed for fall. On Saturday, the artist shared a video of herself finishing off her homework before going to a party, alongside the hashtag

#HotGirlSemester”). As can be seen in those news articles, the relevant public, Applicant’s

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 20 millions of fans and followers, perceive and associate the “HOT GIRL SEMESTER” mark solely with Applicant as the source indicator.

Finally, in In re Champion Int’l Corp., the Trademark Trial and Appeal Board noted that the applicant in that case was applying its proposed mark “in the manner of a trademark on labels affixed to the [goods]” and that the term was ultimately registrable because it was a “coined and completely arbitrary term.” In re Champion Int’l Corp., 183 USPQ 318 (TTAB 1974), citing In re

Clairol Inc., 173 USPQ 355, 457 F.2d 509 (CCPA 1972). The present case is analogous. While

Applicant’s HOT GIRL SEMESTER mark may also be used as a slogan or informational message by the millions of fans of Applicant to describe their feelings, outlooks and emotions, “…a mark may be used for both a trademark purpose and a non-trademark purpose and still be a valid trademark.” Clairol, 173 USPQ at 355-56.

Here, based on the overwhelming amount of statutory and case law in favor of Applicant’s position, the Examining Attorney has not met their burden to establish that the phrase/mark, HOT

GIRL SEMESTER, fails to function as a trademark; and, therefore, Applicant respectfully requests that the Board reverse the Examining Attorney’s denial of Applicant’s HOT GIRL SEMESTER mark(s) and allow the mark(s) to proceed to the principal register.

B. Evidence from the Marketplace

One of the considerations the Board uses to determine whether a mark fails to function as a trademark is how the phrase is used in the marketplace. To that factor, the Examining Attorney provided print-outs from various websites purportedly showing that the phrase HOT GIRL

SEMESTER is merely informational and is a commonplace phrase (i.e., that the HOT GIRL

SEMESTER phrase “is commonly used to refer to women working hard in school after having a fun summer.”) See Office Action of October 18, 2019. The evidence included screenshots from

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 21 HeraldPublicist.com (website URL: https://heraldpublicist.com/hot-girl-semester-is-the-new-hot- girl-summer-so-are-you-ready-to-boss-it/) (stating that the HOT GIRL SEMESTER phrase “was coined none aside from Megan Thee Stallion [Applicant], who’s ushering within the new period of boss strikes.”), UrbanDictionary.com (Website URL: https://www.urbandictionary.com/define.php?term=hot%20girl%20semester) (associating HOT

GIRL SEMESTER with the phrase HOT GIRL SUMMER and stating the definition as that of

“having good grades throughout your semester in school basically after having a ‘hot girl summer’ you have a hot girl semester ;)) and Dictionary.com (Website URL: https://www.dictionary.com/e/memes/hot-girl-summer/) (defining “hot girl summer” as “a meme, originating with rapper Megan Thee Stallion [Applicant], about feeling confident in who you are

. . .), to name a few, as evidence of the Application’s failure to function as a trademark.

However, Applicant avers that most of the evidence used by the Examining Attorney serves as further proof that Applicant is the source and origin of the HOT GIRL SEMESTER mark, and as such, Applicant should be afforded her trademark rights. As shown in several screenshots used as evidence by the Examining Attorney, there is no doubt that the phrase/mark HOT GIRL

SEMESTER is associated with Applicant as Applicant is mentioned in various attachments used as proof by the Examining Attorney in association with the mark, HOT GIRL SEMESTER. Such nefarious activity allows infringers to knowingly profit from the Applicant’s fame, notoriety, hard work, and marketing expertise for her coined and promoted phrase in violation of the purpose of trademark law and trademark protection.

The evidence provided by the Examining Attorney does not “demonstrate a competitive need for others to use” this term. See Maidenform, Inc. v. Munsingwear, Inc., 195 U.S.P.Q. 297

(S.D.N.Y. 1977) (UNDERNEATH IT ALL for women’s underwear held a valid and merely

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 22 suggestive slogan with creative and imaginative elements). Rather, the evidence provided by the

Examining Attorney suggests that various sellers of merchandise and content promoters are using

Applicant’s fame and notoriety in association with Applicant’s HOT GIRL SEMESTER mark to

sell their goods and market their content.

In contrast, in In re Eagle Crest, Inc., a case cited by the Examining Attorney, the Board

found that ONCE A MARINE ALWAYS A MARINE was a phrase commonly used by the

Marines and their admirers in an ornamental fashion based on an overwhelming amount of

evidence that various third parties sell merchandise using the phrase. In re Eagle Crest, Inc., 96

USPQ2d 1227, 1229 (TTAB 2010). The evidence showed dozens of websites featuring decorative

and ornamental use of the ONCE A MARINE ALWAYS A MARINE phrase. Id. However, in that

case, the applicant challenging the Examining Attorney’s denial was not the source indicator of

the phrase, nor did the relevant public associate the ONCE A MARINE ALWAYS A MARINE

phrase with the applicant in that case. In this case, on the other hand, Applicant is the originating

source of the HOT GIRL SEMESTER phrase as indicated in the very definition used by the

Examining Attorney in the screenshot from Dictionary.com, as well as the overwhelming amount

of evidence derived from credible and popular sources of press and media. As can be seen on the

USPTO TESS database, following the Board’s finding in In re Eagle Crest, the U.S. Marine Corps did, in fact, apply and obtain registration for the ONCE A MARINE, ALWAYS A MARINE trademark in international classes 006 and 016 (both of which are associated with different types of merchandise). Of course, since the U.S. Marine Corps is the sole source and origin of the ONCE

A MARINE, ALWAYS A MARINE mark, the U.S. Marine Corps was granted trademark rights.

Similarly, in this case, while there are various others who are using Applicant’s mark in an ornamental and decorative manner, those users are not the source of the goods as perceived by the

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 23 relevant public. Applicant, on the other hand, is the sole source of the HOT GIRL SEMESTER phrase as indicated in Applicant’s evidence as well as the evidence asserted by the Examining

Attorney. As such, similar to the U.S. Marine Corps obtaining trademark rights to what would otherwise be a commonplace phrase, Applicant should be granted trademark rights to the HOT

GIRL SEMESTER mark/phrase because Applicant is the source indicator, and the relevant public

perceives Applicant as the sole source of the phrase.

Thus, based on the evidence presented by both the Applicant and the Examining Attorney,

as well as the evidence in the marketplace showing proof of Applicant as the source indicator for

the HOT GIRL SEMESTER phrase, Applicant should be granted trademark rights for the HOT

GIRL SEMESTER mark/phrase, and the HOT GIRL SEMESTER mark should be granted

allowance to move forward towards trademark registrability.

C. The HOT GIRL SEMESTER Phrase Was Non-Existent Prior to Applicant

Finally, as further proof that Applicant is the sole source of the HOT GIRL SEMESTER

phrase and mark, Applicant presents the following evidence that Applicant is the sole source

identifier associated with the HOT GIRL SEMESTER mark.

As stated above, Applicant/Megan Thee Stallion has a well-known persona, referred to as

“Hot Girl Meg”. Applicant is also referred to as the “H-Town Hottie”. Applicant has tens of

millions of fans and followers as indicated in the screenshots of her social media pages. See Exhibit

22 and Exhibit 23. On May 15, 2019, Applicant released the cover art for her album entitled,

Fever, on her social media pages. The cover art for the Fever album included the phrasing, “She

thee HOT GIRL And she’s bringing THEE HEAT,” as well as “exclusively for “THEE HOTTIES

REAL HOT GIRL SHIT.” See Exhibit 24, TWITTER, @theestallion,

twitter.com/theestallion/status/1128813987821510657?s=20, accessed May 4, 2021. On May 17,

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 24 2019, Fever is released on all music and streaming platforms. On June 23, 2019, Applicant gives

a video interview to The Root at the 2019 BET Award Show, which was titled, “Hot Girl Summer

Starter Kit” where Applicant defines the meaning of the HOT GIRL SUMMER phrase. On August

8, 2019, Applicant released her hit single, “Hot Girl Summer” which became a top hit and reached number 3 on the Billboard Charts in 2019. See Megan Thee Stallion Chart History, BILLBOARD

(2020), www.billboard.com/music/megan-thee-stallion/chart-history/RBM/song/1157661.

Following Applicant’s major success with her coined mark, HOT GIRL SUMMER, Applicant took part in an interview with news media source, Access Hollywood, on August 11, 2019 at

Beauty Con LA, where Applicant stated, “Being a Hot Girl is like a lifestyle and everyone knows

I’m still in college. It’s going to be a real Hot Girl Semester you know what I’m saying real Hot

Nerd Fall,” after being asked by the Access Hollywood reporter how Applicant planned to carry over Hot Girl Summer into the Fall. See Access, Megan Thee Stallion & Drake Collab Coming

Soon?, YOUTUBE (Aug. 11, 2019), https://www.youtube.com/watch?v=N5CP0dXTfbk, accessed

May 4, 2021. Following this interview, Applicant also took part in a “takeover” of the Twitter

Music social media account on August 23, 2019, where she published a social media post stating,

“My tips to having a Hot Girl Semester.” See Exhibit 7.

Given the timeline of the origin and growth of the HOT GIRL SEMESTER phrase with

Applicant as the source identifier, Applicant asserts that the phrase/mark in question was non- existent prior to Applicant. According to Google Trends, the HOT GIRL SEMESTER mark/phrase saw a major increase in interest between Aug. 25, 2019 and Aug. 31, 2019. See Exhibit 25,

Screenshot of GOOGLE Trends, https://trends.google.com/trends/explore?date=2019-01-

01%202021-02-16&geo=US&q=hot%20girl%20semester, accessed May 5, 2021. This increase in interest is in the same exact time period as Applicant’s interview with Access Hollywood, which

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 25 took place on August 11, 2019, as well as Applicant’s Twitter “takeover”, which took place on

August 23, 2019. Further, according to Google Trends, the HOT GIRL SEMESTER mark/phrase

reached its all-time peak of interest between August 25, 2019 and August 31, 2019, which is the

same time period following Applicant’s Access Hollywood interview and Applicant’s Twitter

takeover. See Exhibit 25. Prior to August 2019, the HOT GIRL SEMESTER mark/phrase had no interest at all according to Google Trends. See Exhibit 25.

Thus, based on the evidence provided by Google Trends regarding the phrase, it stands to reason that the single source indicator of the HOT GIRL SEMESTER mark/phrase is Applicant, and, further, and perhaps most importantly, the relevant public clearly perceives the mark as being solely associated with Applicant as the source indicator of the HOT GIRL SEMESTER mark and any merchandise and goods associated therewith.

CONCLUSION

For the reasons set forth above, Applicant submits that Applicant’s HOT GIRL

SEMESTER mark properly functions as a trademark. Accordingly, Applicant’s mark is entitled to

registration on the principal register.

Thus, Applicant respectfully requests that the Board reverse the Examining Attorney’s

decision refusing registration of Applicant’s mark.

Thank you for your time and consideration.

Dated this 5th day of May 2021 By: /R. Dale Hutcherson/ R. Dale Hutcherson, TN Bar No. 037270 William A. Wooten, MO Bar No. 026674 WOOTEN LAW OFFICE 120 Court Square East Covington, Tennessee 38019 Office: (901) 475-1050 Fax: (901) 234-0028

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 26 [email protected] [email protected]

Attorneys for Applicant

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 27 Exhibit 1: Screenshot from Shruti Mishra, How ‘hot girl summer’ turned to ‘hot girl semester’ and how you can participate, THE MIAMI HURRICANE (Sept. 16, 2019), https://www.themiamihurricane.com/2019/09/16/how-hot-girl-summer-turned-to-hot-girl- semester-and-how-you-can-participate/, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 28 Exhibit 2: Screenshot from Shruti Mishra, How ‘hot girl summer’ turned to ‘hot girl semester’ and how you can participate, THE MIAMI HURRICANE (Sept. 16, 2019), https://www.themiamihurricane.com/2019/09/16/how-hot-girl-summer-turned-to-hot-girl- semester-and-how-you-can-participate/, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 29 Exhibit 3: Screenshot from Shruti Mishra, How ‘hot girl summer’ turned to ‘hot girl semester’ and how you can participate, THE MIAMI HURRICANE (Sept. 16, 2019), https://www.themiamihurricane.com/2019/09/16/how-hot-girl-summer-turned-to-hot-girl- semester-and-how-you-can-participate/, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 30 Exhibit 4: Screenshot from Shruti Mishra, How ‘hot girl summer’ turned to ‘hot girl semester’ and how you can participate, THE MIAMI HURRICANE (Sept. 16, 2019), https://www.themiamihurricane.com/2019/09/16/how-hot-girl-summer-turned-to-hot-girl- semester-and-how-you-can-participate/, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 31 Exhibit 5: Screenshot from Jazmine A. Ortiz, Class Is In Session: Megan Thee Stallion Breaks Down ‘Hot Girl Semester’ Rules Including A Business Casual Dress Code, BET (Aug. 27, 2019), https://www.bet.com/style/living/2019/08/27/megan-thee-stallion-s-hot-girl-semester- tips-for-back-to-school.html, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 32 Exhibit 6: Screenshot from Jazmine A. Ortiz, Class Is In Session: Megan Thee Stallion Breaks Down ‘Hot Girl Semester’ Rules Including A Business Casual Dress Code, BET (Aug. 27, 2019), https://www.bet.com/style/living/2019/08/27/megan-thee-stallion-s-hot-girl-semester- tips-for-back-to-school.html, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 33 Exhibit 7: Screenshot from Jazmine A. Ortiz, Class Is In Session: Megan Thee Stallion Breaks Down ‘Hot Girl Semester’ Rules Including A Business Casual Dress Code, BET (Aug. 27, 2019), https://www.bet.com/style/living/2019/08/27/megan-thee-stallion-s-hot-girl-semester- tips-for-back-to-school.html, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 34 Exhibit 8: Screenshot from Jazmine A. Ortiz, Class Is In Session: Megan Thee Stallion Breaks Down ‘Hot Girl Semester’ Rules Including A Business Casual Dress Code, BET (Aug. 27, 2019), https://www.bet.com/style/living/2019/08/27/megan-thee-stallion-s-hot-girl-semester- tips-for-back-to-school.html, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 35 Exhibit 9: Screenshot from Jazmine A. Ortiz, Class Is In Session: Megan Thee Stallion Breaks Down ‘Hot Girl Semester’ Rules Including A Business Casual Dress Code, BET (Aug. 27, 2019), https://www.bet.com/style/living/2019/08/27/megan-thee-stallion-s-hot-girl-semester- tips-for-back-to-school.html, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 36 Exhibit 10: Screenshot from Jazmine A. Ortiz, Class Is In Session: Megan Thee Stallion Breaks Down ‘Hot Girl Semester’ Rules Including A Business Casual Dress Code, BET (Aug. 27, 2019), https://www.bet.com/style/living/2019/08/27/megan-thee-stallion-s-hot-girl-semester- tips-for-back-to-school.html, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 37 Exhibit 11: Screenshot from Bianca Nieves, Your Guide to Having a Hot Girl Semester, TEEN VOGUE (Aug. 28, 2019), https://www.teenvogue.com/story/megan-thee-stallion-hot-girl- semester-fall-guide, accessed July 13, 2020, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 38 Exhibit 12: Screenshot from Bianca Nieves, Your Guide to Having a Hot Girl Semester, TEEN VOGUE (Aug. 28, 2019), https://www.teenvogue.com/story/megan-thee-stallion-hot-girl- semester-fall-guide, accessed July 13, 2020, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 39 Exhibit 13: Screenshot from Bianca Nieves, Your Guide to Having a Hot Girl Semester, TEEN VOGUE (Aug. 28, 2019), https://www.teenvogue.com/story/megan-thee-stallion-hot-girl- semester-fall-guide, accessed July 13, 2020, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 40 Exhibit 14: Screenshot from Bianca Nieves, Your Guide to Having a Hot Girl Semester, TEEN VOGUE (Aug. 28, 2019), https://www.teenvogue.com/story/megan-thee-stallion-hot-girl- semester-fall-guide, accessed July 13, 2020, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 41 Exhibit 15: Screenshot from Faima Bakar, Hot Girl Semester is the new Hot Girl Summer so are you ready to boss it?, METRO (Sept. 1, 2019 at 12:29 PM), https://metro.co.uk/2019/09/01/hot- girl-semester-is-the-new-hot-girl-summer-so-are-you-ready-to-boss-it-10665675/, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 42 Exhibit 16: Screenshot from Faima Bakar, Hot Girl Semester is the new Hot Girl Summer so are you ready to boss it?, METRO (Sept. 1, 2019 at 12:29 PM), https://metro.co.uk/2019/09/01/hot- girl-semester-is-the-new-hot-girl-summer-so-are-you-ready-to-boss-it-10665675/, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 43 Exhibit 17: Screenshot from Faima Bakar, Hot Girl Semester is the new Hot Girl Summer so are you ready to boss it?, METRO (Sept. 1, 2019 at 12:29 PM), https://metro.co.uk/2019/09/01/hot- girl-semester-is-the-new-hot-girl-summer-so-are-you-ready-to-boss-it-10665675/, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 44 Exhibit 18: Screenshot from Faima Bakar, Hot Girl Semester is the new Hot Girl Summer so are you ready to boss it?, METRO (Sept. 1, 2019 at 12:29 PM), https://metro.co.uk/2019/09/01/hot- girl-semester-is-the-new-hot-girl-summer-so-are-you-ready-to-boss-it-10665675/, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 45 Exhibit 19: Screenshot from Lia McGarrigle, Megan Thee Stallion Is Getting Us Ready for Back to School Season with Hot Girl Semester, HIGHSNOBIETY (Sept. 2, 2019), https://www.highsnobiety.com/p/megan-thee-stallion-hot-girl-semester/, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 46 Exhibit 20: Screenshot from Lia McGarrigle, Megan Thee Stallion Is Getting Us Ready for Back to School Season with Hot Girl Semester, HIGHSNOBIETY (Sept. 2, 2019), https://www.highsnobiety.com/p/megan-thee-stallion-hot-girl-semester/, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 47 Exhibit 21: Screenshot from Lia McGarrigle, Megan Thee Stallion Is Getting Us Ready for Back to School Season with Hot Girl Semester, HIGHSNOBIETY (Sept. 2, 2019), https://www.highsnobiety.com/p/megan-thee-stallion-hot-girl-semester/, accessed July 13, 2020.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 48 Exhibit 22: Screenshot from INSTAGRAM, @theestallion, https://www.instagram.com/theestallion/, accessed February 8, 2021.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 49 Exhibit 23: Screenshot from TWITTER, @theestallion, https://twitter.com/theestallion, accessed February 8, 2021.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 50 Exhibit 24: Screenshot from TWITTER, @TheeStallion, twitter.com/theestallion/status/1128813987821510657?s=20, accessed May 5, 2021.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 51 Exhibit 25: Screenshot from GOOGLE Trends, search “Hot Girl Semester”, https://trends.google.com/trends/explore?date=2019-01-01%202021-02- 16&geo=US&q=hot%20girl%20semester, accessed May 5, 2021.

Serial Nos. 88631285, 88631287, 88631290; Applicant’s Ex Parte Appeal Brief 52