Who owns ‘Elbows Up’? Canadian companies trying to cash in on patriotic slogan

A hardware store in Hammonds Plains, N.S., displays 'Elbows Up' T-shirts. (Aly Thomson/CBC)Social SharingFrom the hockey rink to the political arena, the phrase “Elbows Up” has become part of the Canadian lexicon — and now a number of businesses are trying to cash in on it.

There are roughly a dozen applications listed on the Canadian Intellectual Property Office’s trademarks database to have the exclusive right to “Elbows Up,” with companies seeking to emblazon the slogan on everything from clothing to beer cans, bumper stickers and dietary supplements.

But the bulk of the applications, many of which were submitted over a year ago, have been met with objections from the office due to the phrase being “nondistinctive.” 

Trademark and copyright lawyer Reagan Seidler said the office appears to have taken an official position that "Elbows Up" cannot function as a brand because it has become a patriotic symbol.

“They are of the opinion that nobody in Canada should be able to own the phrase,” said Seidler, who works with Smart and Biggar in Toronto.

“The trademarks office is of the view that if you see Elbows Up on a T-shirt, you're not going to think Elbows Up is the company name or its slogan. Like 'Just Do It.' You're going to think that is just repeating the kind of messaging that's come from the Prime Minister's Office and elsewhere.”

“Elbows Up” has been around for decades, first used to describe the playing style of legendary Canadian NHLer Gordie Howe, who was known to raise his elbows to protect himself and fend off opponents on the ice.

But early last year, the meaning shifted.

As the trade war with the U.S. heated up, actor Mike Myers appeared on Saturday Night Live and as the cast was waving goodbye, he unzipped his vest to display a shirt declaring that “Canada is not for sale.” He then gestured to his elbows and mouthed “elbows up.”

Not long after, Prime Minister Mark Carney released a campaign video with Myers, standing on the edge of a hockey rink, and ending with the pair repeating the phrase.

Seidler said it’s not unusual for companies to jump to trademark a moment or catchy expression, pointing to “very demure, very mindful,” made famous by a woman on TikTok.

Yellowbelly Brewery in St. John's, N.L., applied to trademark its 'Elbows Up' design. (Elizabeth Whitten/CBC)But he’s never seen companies try to capitalize on a political event.

“It is very rare for the trademarks office to say, in principle, a phrase should not be owned by any particular company,” said Seidler.

“And they reference in their objections general news coverage of how the phrase has been used as their basis to say that elbows up inherently will not function as a brand name in the minds of Canadians.”

Mark Howe, son of “Mr. Elbows,” as he was also known, said he’s not surprised that people are trying to trademark Elbows Up, noting it’s a “very marketable thing.”

The Howe family is no stranger to trademarks. The Howe Foundation owns the trademarks for Gordie Howe, Mr. Hockey and Mrs. Hockey, mostly as a way to raise funds for the charitable organization, he said.

In fact, Mark Howe said officials had to ask permission to use his father’s name on the Gordie Howe International Bridge, which opened earlier this year.

“It's business. And I would like to think somebody would try to trademark it.… I would be shocked actually if somebody didn’t try to go after it,” said Howe in an interview.

A statue of Gordie Howe outside the SaskTel Centre in Saskatoon. (Peter Mills/CBC)Mark Howe said despite his father’s reputation on the ice, he was a respectful family man who would be appreciative of the hoopla surrounding “Elbows Up” and a namesake bridge.

“He'd be grateful and he'd be humble. But as soon as everything just kind of drifted away, he would look forward to being with his family, his grandkids, being out fishing, golfing, doing something like that,” said Howe.

The Canadian Intellectual Property Office declined an interview request, saying in a statement that it cannot provide information about applications.

Seidler said it has been interesting watching the “Elbows Up” phenomenon play out.

“I do think it's amusing to watch every time a phrase hits the public domain, the swath of people that will move in to try to monopolize that phrase and capitalize on it. It's a natural instinct,” he said.

“The more interesting part of the story is that the trademark office has taken the principled position that Elbows Up is not capable of serving, in their view, as a trademark and in that sense, reserving the right of all Canadians to use that phrase as this trade war continues.”

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Aly Thomson is a journalist for CBC News in Halifax. She is particularly interested in issues surrounding women's health, justice, education and the entertainment industry. You can email her with tips and feedback at aly.thomson@cbc.ca.