Friday, March 13, 2020

California Individual Files Applications to Register WE CURED COVID-19 and Two Other COVID-19 Slogans as Trademarks

With the COVID-19 pandemic starting to overwhelm our daily lives, it's not surprising to see individuals and companies filing federal trademark applications for the term.
Most recently, on March 9, an individual in California filed applications to register the three slogans below as federal trademarks:
All three applications cover the same goods and services, namely:
  • Clothing (Class 25);
  • Providing information in the field of medicine; promotional services, namely, promoting the charities of others (Class 35); and
  • Charitable fundraising (Class 36)
However, simply because this individual filed applications doesn't mean he'll obtain registrations. The individual filed these applications on an intent-to-use basis, meaning he'll need to start using these slogans as trademarks with the listed goods and services and submit sufficient proof of same to the U.S. Patent and Trademark Office before he can be issued registrations. TMEP 806.01(b); 15 USC 1051(b). No trademark use = no registration.

The applications could also face barriers in the examination phase. For example, the USPTO will likely ask the applicant to specify the type of clothing in Class 25. Further, depending on the applicant's use of these slogans, the USPTO may find them to merely convey a message rather than function as an identifier of the source of the goods/services. See TMEP 1202.03(f)(i).

In any event, one can expect to see a slew of CORONAVIRUS and COVID-19 trademark applications filed in the near future. And, as always happens when a popular phrase comes about, you can expect the vast majority of those applications die before registration.

Tuesday, January 21, 2020

Baltimore Ravens QB Lamar Jackson Files Trademark Applications for NOT BAD FOR A RUNNING BACK, Two Other Marks

On January 16, a few days after losing to the Tennessee Titans in the Divisional Round of the NFL playoffs, Baltimore Ravens quarterback Lamar Jackson filed three applications with the U.S Patent and Trademark Office.
The applications are for the following marks:
The applications cover the same goods in Class 25, namely "Bottoms as clothing; Footwear; Headwear; Tops as clothing; Undergarments." According to the applications, Lamar is already using NOT BAD FOR A RUNNING BACK as a trademark for that apparel, but is not currently using the other two marks (although the applications suggests he has a bona fide intention to do so in the near future).

Back in April 2019, the same attorney who filed these applications obtained a federal trademark registration for the name LAMAR JACKSON covering similar apparel items, as well as backpacks, athletic bags, duffel bags, and sports bag. With that application, Lamar submitted his written consent to register his name as a trademark (see below). Such written consent is required under Section 2(c) of the Trademark Act when a trademark incorporates the name of a living individual.

Lamar Jackson, individually, is listed as the owner of each application above. According to my quick search, there are currently three other federal trademark applications pending that are owned by Lamar Jackson. All three are for various logos that appear to be related to his Era 8 apparel line.

Monday, December 23, 2019

Heisman Winner and LSU Quarterback Joe Burrow Files Applications to Register His Name/Nickname as Trademarks

Like so many other athletes, 2019 Heisman Trophy winner and current LSU quarterback Joe Burrow is filing trademark applications for his name and nickname.
On December 18, Joe Burrow filed two federal trademark applications with the U.S. Patent and Trademark Office (USPTO) for the following marks:
Both applications cover the same services, namely:
  • (Class 25) Athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms; sports jerseys; headwear, namely, caps, hats, skull caps and visors; apparel and clothing, namely, aprons, ascots, bandanas, bath robes, bathing trunks/bathing drawers, bathing suits/swimsuits, beach clothes, belts, bibs, not of paper, coats, cuffs/wristbands, dresses, dressing gowns, ear muffs, gloves, headbands, hoods, jackets, jerseys, jumper dresses/pinafore dresses, knitwear, leggings, neckties, outerclothing, overalls/smocks, pants/drawers, paper clothing, paper hats, parkas, pocket squares, pockets for clothing, ponchos, pullovers/jumpers, pajamas, scarves/scarfs, shawls, shirts, short-sleeve shirts, sports jerseys, skirts, socks, suspenders, stockings, sweat-absorbent stockings, sweat-absorbent underclothing, anti-sweat underwear, sweaters, tee-shirts, tights, trousers, underpants, underwear, underclothing, uniforms; footwear; footwear, namely, sandals, slippers, tennis shoes, football shoes, cleats, sports shoes
  • (Class 35) Endorsement services, namely, promoting the goods and services of others
Joe filed the applications on an intent-to-use basis, suggesting he is not currently using his name and nickname as a trademark for these goods and services yet, but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). Before these marks can register, Joe will need to start providing the listed goods and services under these marks in interstate commerce and submit sufficient proof of such use to the USPTO. See TMEP 1103.

Notably missing from the applications is a declaration from Joe Burrow consenting to the registration of his name and nickname as a trademark. Section 2(c) of the Trademark Act absolutely bars the registration of a mark that "[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent..." This prohibition applies to nicknames as well. TMEP 1206.01. The USPTO will require this declaration from Joe before the marks can be registered.

Both applications were filed in Joe Burrow's name individually by Randy Cangelosi, an attorney at Kean Miller LLP in Baton Rouge, Louisiana. These are the first federal trademark applications listing "Joe Burrow" as the owner.

Tuesday, December 10, 2019

Fans of Tapatio Hot Sauce May Soon Have Tapatio Beer, Potato Chips According to Recent Trademark Applications

Tapatio is well-known for its hot sauce, but the hot sauce company may be moving into different product lines, if recent applications filed with the U.S. Patent and Trademark Office are any indication.
On December 5, Tapatio Foods, LLC filed four federal trademark applications for the marks below:
  • TAPATIO covering "beer" in Class 32;
  • TAPATIO covering "potato chips" in Class 29;
  • The logo above covering "potato chips" in Class 29; and
  • TAPTIO covering "beer" in Class 32.*
* likely a spelling error (will probably result in an abandonment of this application by Tapatio Foods).

Tapatio Foods, LLC filed each application on an intent-to-use basis, suggesting the company is not currently using its name and logo with the listed goods yet, but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). Before these marks can register, Tapatio Foods will need to start selling beer under the Tapatio name and potato chips under the Tapatio name and logo. See TMEP 1103.

While these applications by no means require Tapatio Foods to start selling beer or potato chips, the do suggest something is in the works. Tapatio fans - keep an eye out for Tapatio beer and potato chips in the near future.

Friday, November 15, 2019

Fox Files Application to Register OK BOOMER as a Trademark for an On-Going Reality Television Competition

Is Fox developing a reality TV show called OK BOOMER? A recent trademark application indicates such a show is in the works.
On November 11, Fox Media LLC filed a federal trademark application with the U.S. Patent and Trademark Office for the words OK BOOMER. The application covers the following services in Class 41:
Entertainment services, namely, an on-going television series featuring reality competition, comedy, and game shows; providing on-line information in the field of television and video entertainment featuring reality competition, comedy, and game shows via the Internet; entertainment services in the nature of non-downloadable videos and images featuring television shows about reality competition, comedy, and game shows transmitted via the Internet and wireless communication networks
Fox filed the application on an intent-to-use basis, suggesting this trademark isn't currently being used with the listed services, but the network has a bona fide intention to use this mark in the near future. 15 USC 1051(b); TMEP 806.01(b). Before the mark can register, Fox will need to start rendering the listed services, including a reality TV show, under the OK BOOMER mark.

The "OK BOOMER" phrase went viral on social media recently and is commonly used by younger generations as a jab to the baby boomer generation. Now, it appears, Fox may be attempting to capitalize on that popularity (rightfully or wrongfully) by developing a related reality television show, along with related online content.

Fox Media LLC appears to be a holding company for the network's trademarks. That entity currently owns 571 active trademark applications or registrations with the USPTO, including many for Fox programs like THE MASKED SINGER and FOX & FRIENDS.

Tuesday, November 12, 2019

Alligator Farm in Florida Files Application to Register CHANCE THE SNAPPER as a Trademark for Clothing, Live Performances by an Alligator

You've probably heard of Chance the Rapper. But CHANCE THE SNAPPER? If you're from Chicago, maybe. This past summer, the 5-foot-long alligator nicknamed Chance the Snapper by an online poll was captured after spending a week in Chicago's Humboldt Park on the city's West Side. After being captured, the city transferred the alligator to the St. Augustine Alligator Farm Zoological Park in St. Augustine, Florida.

It was the St. Augustine Alligator Farm, Inc. that filed a federal trademark application for CHANCE THE SNAPPER on November 7. The application covers:
  • Entertainment services, namely, live performances by an alligator (Class 41); and
  • Clothing, namely, shirts, hats, jackets, sweatshirts, headwear, footwear (Class 25.
According to the application, the St. Augustine Alligator Farm has been using CHANCE THE SNAPPER as a trademark for these goods and services since at least July 18, 2019 (specimens of use submitted with the application are seen above and below).

But will the alligator farm run into issues with the U.S. Patent and Trademark Office during the registration process? Possibly.

For starters, Chance the Rapper obtained his own federal trademark registration for CHANCE THE RAPPER in 2014, which also covers a variety of entertainment services in Class 41 and apparel in Class 25. If the USPTO believes CHANCE THE SNAPPER is confusingly similar to that mark, it will refuse registration of CHANCE THE SNAPPER under Section 2(d) of the Trademark Act. See TMEP 1207 et. seq.

Regardless of whether the USPTO thinks there is a likelihood of confusion with the CHANCE THE RAPPER mark, it could still refuse registration under Section 2(a) of the Trademark Act, which bars the registration of a mark that "consists of or comprises matter which, with regard to persons...falsely suggests a connection with them." TMEP 1203.03; 15 USC 1052(a).

To establish that a proposed mark falsely suggests a connection with a person or an institution, it must be shown that:
  1. the mark is the same as, or a close approximation of, the name or identity previously used by another person or institution;
  2. the mark would be recognized as such, in that it points uniquely and unmistakably to that person or institution;
  3. the person or institution named by the mark is not connected with the activities performed by the applicant under the mark; and
  4. the fame or reputation of the person or institution is such that, when the mark is used with the applicant’s goods or services, a connection with the person or institution would be presumed.
TMEP 1203.03(c)(i). Further "a mark does not have to comprise a person’s full or correct name to be unregistrable; a nickname or other designation by which a person is known by the public may be unregistrable under this provision of the Act." TMEP 1203.03.

What do you think? Is CHANCE THE SNAPPER for entertainment services and apparel confusingly similar to CHANCE THE RAPPER for entertainment services and apparel? Is CHANCE THE SNAPPER a close approximation of CHANCE THE RAPPER, would it be recognized as pointing uniquely and unmistakably to Chance the Rapper, and would people believe Chance the Rapper is associated with CHANCE THE SNAPPER even though he might not be?

We'll find out what the USPTO thinks in approximately three months when this application is reviewed by an examining attorney.