Undergraduate Law Review at Florida State University

Hot Girls Read, But Can They Trademark It? Trademarking Digitally Community-Created Language and Rethinking Failure to Function

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Undergraduate Law Review at FSU
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Writer: Elizabeth Cortina

Editor: Alyssa Leon

Associate Editor: Alaina Babb

I. Reading Regularly Is Not a Brand

Every reader knows the thrill of finding a sentence that describes them perfectly. For many readers online, that sentence is “hot girls read.” It appears on tote bags, bookmarks, and sweatshirts, but nobody truly knows who wrote it first. At most, a shirt printed with “Hot Girls Read” alludes to the wearer’s hobbies; it says nothing meaningful about those who commercialized it. In June 2026, a small business announced that it had registered “Hot Girls Read” as a federal trademark, and the internet responded almost instantly.1 Within days, the petition to cancel the registration was filed, and the owner gave it up.2 The story ended quickly, but its question did not: Can a business own words that describe an entire digital community?

Trademark law gives a conditional answer. A trademark helps delineate brands, telling shoppers who stands behind a product.3 A phrase that simply resonates with shoppers does not do that job, even when it looks good on a sweatshirt. A registrant may try to enforce its trademark by demanding that other sellers stop using the phrase or asking online marketplaces to remove those listings, and if those efforts succeed, the registrant might point to the resulting decline in other sellers’ usage as evidence of brand recognition. That decline alone, however, does not show that buyers recognize the phrase as a brand.4 When a registrant uses enforcement to remove other commercial actors from the market, trademark law rewards exclusion instead of source significance.5 This article argues that the United States Patent and Trademark Office (USPTO) and Trademark Trial and Appeal Board (TTAB) should adopt a narrow evidentiary rule regarding phrases with widespread, independent, and expressive use. Under this rule, a decline caused by enforcement should not itself count as evidence that consumers recognize the phrase as a brand.

II. Failure to Function: A Brand is a Source, Not a Slogan

The Lanham Act protects a word, name, or symbol that a seller uses to identify and distinguish its goods without providing unlimited control in every setting.6 The failure-to-function doctrine addresses this boundary: A phrase cannot be registered when buyers understand it only as a message rather than as identifying a particular business, however original it may be.7 In In re Eagle Crest, Inc. (2010), the TTAB refused registration of “Once a Marine, Always a Marine” on clothing because the phrase was a familiar expression that buyers would not read as a brand.8 TTAB reached a similar result for “I LOVE YOU” in In re Peace Love World, Live (2018),9 and the Federal Circuit has affirmed refusals where a phrase’s widespread use by others defeated source significance.10 This reasoning does not require declaring that a community owns a phrase, but instead rests only on the absence of the applicant’s source-identifying function.11

The doctrine nevertheless needs discipline. In the case of In re Brunetti (2025), the Federal Circuit vacated a failure-to-function refusal because the TTAB’s reasoning amounted to an unexplained judgment rather than an articulated standard.12 Legal scholarship reached a similar conclusion before In re Brunetti, with Alexandra Roberts arguing failure to function deserves recognition as a distinct requirement applied with greater clarity. 13Lucas Daniel Cuatrecasas also warned that its inconsistent application fosters uncertainty among both applicants and competitors.14 The task, then, is to make failure to function more predictable.

III. “Hot Girls Read” and the Limits of Surrender

Allie Rose LLC applied to register “Hot Girls Read” in August 2024, and the registration was issued in February 2026.15 However, this phrase was not new. The phrase “hot girl” descends from vocabulary popularized by Megan Thee Stallion in 2019,16 and readers on BookTok17 had used it as a self-identifier and on merchandise for years.18 When the owner announced the registration in June 2026, the announcement reportedly encouraged other sellers to remove their listings, although she later denied sending cease-and-desist letters.19 A petition to cancel the trademark soon followed, and the registrant surrendered the registration shortly afterwards.20
The surrender promptly ended the controversy without resolving its central question; A registrant who surrenders a registration after a cancellation petition has been filed, without the petitioner’s written consent, suffers judgment, and the TTAB never reaches a final answer.21 Whether consumers perceive “Hot Girls Read” as a brand therefore remains unsettled, and the same question will likely return with the next viral internet phrase. What remains is not who prevailed in this dispute, but what evidentiary rule would prevent the next one.

IV. Exclusion is Not Evidence of Recognition

If two sellers were to offer the same reader-oriented slogan, with the first seller obtaining registration and demanding that the second seller stop, the second seller would most likely comply—it costs significantly less to replace a design than to contest a demand. If the first seller then cites its newly exclusive use as proof that buyers associate the slogan with a single source, the reasoning becomes circular: The asserted right generates the evidence offered to justify the right, and there is no evidence that any buyer changed their understanding.

The proposed rule would serve to break that circle. Where the record establishes widespread, independent, and expressive use before the filing date, the USPTO should give no independent evidentiary weight to a decline in competing uses shown from enforcement. The applicant would instead have to prove what exclusivity cannot, which is that consumers perceive the wording as a source identifier. An applicant cannot overcome a refusal based on merely informational wording by claiming acquired distinctiveness under section 2(f) of the Lanham Act; it depends on consumer perception rather than on the applicant’s success in reaching that standard.22 Acceptable evidence would include customer references, purchasing context, and unsolicited media treating the phrase as a brand.23

Registration, not only infringement, makes these stakes concrete. A registration is prima facie evidence of validity, ownership, and the exclusive right to use the mark on the listed goods,24 and those advantages justify scrutiny of the evidence before the USPTO grants them. Although infringement generally requires likelihood of confusion, this element does not answer whether the phrase deserved registration at all.25 Applied to “Hot Girls Read,” the rule would direct attention to whether readers understood the words as a brand independent of knowing which business claimed them. Public recognition of a claimant during a controversy is not recognition of the phrase as a source identifier at the point of purchase. The rule also serves to answer the Federal Circuit’s call for predictability, as it identifies one inference examiners may not draw instead of asking them to decide which communities deserve particular phrases.26

V. Objections and Limitations

The strongest objection to this rule is that it penalizes legitimate enforcement. A successful slogan can convey a message and designate a source simultaneously, and early social media use should not permanently disqualify a phrase that later acquires genuine brand significance. The rule accommodates both points because it discounts only the disappearance of alternatives, and affirmative evidence that buyers recognize the applicant would count in full. A second concern revolves around examiners struggling to apply the rule to a phrase used widely online. Cuatrecasas proposes combining failure to function with aesthetic functionality,27 which asks how trademark protection would affect competition.28 Under this article’s proposal, examiners would only apply the rule when the evidence already shows independent, expressive use and when the applicant offers enforcement to explain later exclusivity. Examiners would distinguish a repost promoting the applicant from an unrelated reader’s self-description and give little weight to an isolated use outside the relevant market.29 Because the rule depends on evidence in the record, it also avoids requiring small applicants to explain every single online use.

VI. Who Gets the Last Word?

Trademark law exists so that shoppers can tell who made what, not so that a seller can claim a sentence a community wrote together. “Hot Girls Read” does not need to become a categorical exception for internet culture; however, it should instead sharpen a basic constraint: A seller must demonstrate source significance, not merely the ability to make competitors retreat. The proposed rule asks very little, as it removes one bad inference and leaves the rest of the doctrine in place; businesses could still center a brand on a popular phrase if they receive proper recognition. Readers may buy a slogan because it describes them, but until the evidence shows that it also identifies the seller, the seller should not get the last word.

  1. Andi Zeisler, The Trademark Wars of Influencer Culture, Salon (July 2026), https://www.salon.com/2026/07/07/the-trademark-wars-of-influencer-culture/ (on file with the Undergraduate Law Review at FSU); Ash Wren,“Hot Girls Read” Has Been Trademarked, Substack (June 2026), https://ashwrenwrites.substack.com/p/hot-girls-read-has-been-trademarked (on file with the Undergraduate Law Review at FSU). ↩︎
  2. Petition for Cancellation, Guarnieri v. Allie Rose LLC, Cancellation No. 92091888 (T.T.A.B. filed 2026) 1 TTABVUE; Xavier Morales, HOT GIRLS READ Trademark Backlash Shows the Risk of Claiming a Community Phrase, Secure Your Trademark (July 2026), https://secureyourtrademark.com/blog/hot-girls-read-trademark-backlash/ (on file with the Undergraduate Law Review at FSU); Zeisler, supra note 1. ↩︎
  3. Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 163–64 (1995) (explaining that trademarks serve to identify source and reduce consumers’ shopping costs); see also 15 U.S.C. § 1127 (defining “trademark”). ↩︎
  4. U.S. Pat. & Trademark Off., I Received a Letter/Email… (Apr. 2024), https://www.uspto.gov/trademarks/i-received-letter (on file with the Undergraduate Law Review at FSU); Etsy, Intellectual Property Policy §§ 1–2 (Oct. 2026), https://www.etsy.com/legal/ip/ (on file with the Undergraduate Law Review at FSU). These are private demands and marketplace complaints, rather than orders issued by the TTAB. The TTAB determines registration rights, not claims of infringement. U.S. Pat. & Trademark Off., Trademark Trial and Appeal Board Manual of Procedure § 102.01 (2026). ↩︎
  5. See In re GO & Assocs., LLC, 90 F.4th 1354 (Fed. Cir. 2024) (describing the applicant’s assertion that policing reduced searches for the phrase and the examiner’s conclusion that the evidence did little to establish source identification). This article recommends a proposed rule concerning enforcement-driven exclusivity, rather than a rule expressly adopted in that decision. ↩︎
  6. See 15 U.S.C. § 1127; Qualitex, 514 U.S. at 163–64. ↩︎
  7. 15 U.S.C. §§ 1051, 1052, 1127 (2024); U.S. Pat. & Trademark Off., Trademark Manual of Examining Procedure §§ 1202.04, 1202.04(b) (2026). ↩︎
  8. In re Eagle Crest, Inc., 96 U.S.P.Q.2d 1227, 1229–30 (T.T.A.B. 2010). ↩︎
  9. In re Peace Love World Live, LLC, 127 U.S.P.Q.2d 1400 (T.T.A.B. 2018). ↩︎
  10. See GO & Assocs., 90 F.4th at 1356–58. ↩︎
  11. Sydney E. McDermott, Stay in the Know: Informational Message is Not a Source Identifier, IP Update (Feb. 2024), https://www.ipupdate.com/2024/02/stay-in-the-know-informational-message-is-not-a-source-identifier/ (on file with the Undergraduate Law Review at FSU) (“What makes a trademark a trademark under the Lanham Act is its source-identifying function.” The mark must identify the source for the public and distinguish that source from others.”). ↩︎
  12. In re Brunetti, 151 F.4th 1367 (Fed. Cir. 2025). ↩︎
  13. Alexandra J. Roberts, Trademark Failure to Function, 104 Iowa L. Rev. 1977 (2019) (explaining the importance of use as a mark and proposing that its analysis be integrated with distinctiveness). ↩︎
  14. Lucas Daniel Cuatrecasas, Note, Failure to Function and Trademark Law’s Outermost Bound, 96 N.Y.U. L. Rev. 1312 (2021). ↩︎
  15. “Hot Girls Read,” Reg. No. 8130042 (2026); Morales, supra note 2. ↩︎
  16. Meghan Thee Stallion, Megan Thee Stallion – Hot Girl Summer ft. Nicki Minaj & Ty Dolla $ign [Official Video], YouTube (Sept. 2019), https://www.youtube.com/watch?v=FbcLcSY2au4 (on file with the Undergraduate Law Review at FSU); see also Zeisler, supra note 1. ↩︎
  17. BookTok is a community on TikTok where users share book reviews, recommendations, and other content about reading. See TikTok, A New Way to Tap into the #BookTok Community (Sept. 2022), https://newsroom.tiktok.com/a-new-way-to-tap-into-the-booktok-community?_sp=12865b70-4626-4047-9e4b-69cebf74a3c1&lang=en (on file with the Undergraduate Law Review at FSU). ↩︎
  18. Zeisler, supra note 1; Wren, supra note 1. ↩︎
  19. Wren, supra note 1; Morales, supra note 2. ↩︎
  20. Petition for Cancellation, Guarnieri v. Allie Rose LLC, Cancellation No. 92091888 (T.T.A.B. 2026), 1 TTABVUE; Zeisler, supra note 1. ↩︎
  21. 37 C.F.R. § 2.134(a) (2026). ↩︎
  22. 15 U.S.C. § 1052(f) (2024); Wal-Mart Stores, Inc. v. Samara Bros, 529 U.S. 205, 211–12 (2000); U.S. Pat. & Trademark Off., Trademark Manual of Examining Procedure § 1202.04(d) (2026). Section 2(f) allows applicants to show that wording has acquired distinctiveness through use, meaning buyers have come to recognize it as identifying a single source. An applicant can respond to an informational refusal with evidence that buyers actually perceive the wording as a source identifier. ↩︎
  23. U.S. Pat. & Trademark Off., Trademark Manual of Examining Procedure § 1202.04(d) (2026). ↩︎
  24. 15 U.S.C. § 1057(b) (2024). ↩︎
  25. 15 U.S.C. § 1114(1) (2024). ↩︎
  26. See In re Brunetti, 151 F.4th 1367 (Fed. Cir. 2025) (vacating and remanding because the TTAB had not adequately explained its failure-to-function determination). ↩︎
  27. Aesthetic functionality limits trademark protection when exclusive rights over a feature would place competitors at a significant disadvantage unrelated to the owner’s reputation. The inquiry concerns competitors’ need to use the feature, rather than simply whether buyers find it attractive. See Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 165, 169–70 (1995). ↩︎
  28. Cuatrecasas, supra note 14, at 1317. ↩︎
  29. U.S. Pat. & Trademark Off., Trademark Manual of Examining Procedure § 1202.04 (2026); In re DePorter, 129 U.S.P.Q.2d 1298, 1302 (T.T.A.B. 2019) (considering noncommercial social media posts as evidence of how consumers would understand the proposed mark). ↩︎

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