The Seventh Circuit Court of Appeals is weighing whether a California-based clothing company, TWD LLC, can win a retrial after losing a trademark dispute over its use of the U.S. Army motto “This We’ll Defend” on apparel. Judges questioned whether the long-established military slogan is too widely known to qualify for protection under federal or common law, highlighting the challenges of trademarking phrases with deep historical significance.

TWD LLC is asking a three-judge panel to reinstate claims and certain defenses that were denied at the district court level in favor of Grunt Style LLC, a Chicago-based competitor. TWD contends Grunt Style’s use of the phrase on a small number of T-shirts sold in limited markets does not infringe its federally registered trademark. The company also noted that the U.S. Army has recognized TWD’s trademark and permitted its use on clothing products.

During Thursday’s hearing, Judge Kenneth Ripple observed that “This We’ll Defend” is embedded in the nation’s military history, raising doubts about whether any private company can claim exclusive rights to the phrase. U.S. Circuit Judge John Lee added that converting a historic slogan into a commercial trademark presents unique challenges, particularly when the phrase has been widely used for decades.

TWD’s attorney argued that Grunt Style’s use was ornamental, serving more as a messaging tool than a brand identifier. Grunt Style’s counsel countered that trademark priority is based on who first uses a mark in commerce, pointing to evidence that the company had been selling “This We’ll Defend” merchandise since 2011, years before TWD registered its trademark in 2016.

The case originally began in 2018, when TWD sued Grunt Style for alleged unfair competition. Grunt Style responded with counterclaims asserting prior rights to the Army motto. A jury ultimately sided with Grunt Style, awarding nearly $740,000 in damages for trademark infringement and Lanham Act violations, later adding $229,235 in prejudgment interest. The jury rejected requests for punitive damages, and the district court canceled TWD’s trademark, concluding that Grunt Style’s earlier and broader use gave it priority.

TWD now appeals, challenging the district court’s evidentiary rulings and interpretations of trademark law. The outcome could have broader implications for the commercial use of phrases rooted in U.S. history, particularly those associated with the military. Legal experts say the case may clarify when a historic or widely recognized phrase can be treated as a trademark, balancing public interest against commercial rights.

The appellate panel includes U.S. Circuit Judges Kenneth Ripple, John Lee, and Joshua Kolar. Grunt Style is represented by attorneys Matthew De Preter and Sofia Quezada Hastings of Aronberg Goldgehn Davis & Garmisa. TWD LLC is represented by Darren Quinn of the Law Offices of Darren J. Quinn.