Friday, August 11, 2017

Is the Halo Top Product Line Expanding? Trademark Applications for Ice Cream Bars, Yogurt, Custard Filed

Halo Top is a line of low-calorie, high-protein, low-sugar ice cream sold by Eden Creamery in Los Angeles. Currently the company sells a variety of ice cream flavors and has become increasingly popular over the last couple years. On November 15, 2016, the creamery received a federal trademark registration for HALO TOP covering ice cream and online retail store/online ordering services featuring ice cream.
More recent trademark applications, however, suggest that Eden Creamery may have plans to expand the HALO TOP line of products. On August 7th, the creamery filed another trademark application for HALO TOP with the U.S. Patent and Trademark Office, this one covering the following goods:
  • Dietary supplemental drinks; Powdered nutritional supplement drink mix; Protein supplement shakes (Class 5);
  • Ice cream makers; Ice machines and apparatus (Class 11);
  • Ice cream scoops (Class 21);
  • Bases for making milk shakes; Cream; Dairy-based beverages; Ice cream shakes; Non-dairy creamer; Sour milk; Whipped cream; Whipped topping; Milk shakes (Class 29); and
  • Ice cream soda (Class 32)
Further, on August 1st the company filed yet another trademark application for HALO TOP covering:
  • Custard style yoghurts; Greek yogurt; Yogurt; Yogurt drinks (Class 29);
  • Custard; Frozen custards; Frozen yogurt; Frozen yogurt confections; Frozen yogurt mixes (Class 30); and
  • Self-serve frozen yogurt shop services
And finally, back in March, Eden Creamery filed an application for HALO TOP covering:
  • Frozen confections; ice cream bars; ice cream sandwiches; ice cream novelties and frozen confection novelties; frozen confections and ice cream for retail and wholesale distribution and consumption (Class 30);
  • Ice cream and frozen confection parlor shop store services; scoop shop in the nature of ice cream and frozen confection parlor services; retail store services featuring ice cream, frozen confection and frozen confection novelties for consumption off the premises; wholesale store services featuring frozen confections and ice cream; online wholesale store services featuring frozen confections and ice cream; wholesale distributorship services featuring ice cream and frozen confections; online wholesale distributorship services featuring ice cream and frozen confections (Class 35)
Eden Creamery filed the three HALO TOP applications from March and August 2017 on an intent to use basis, suggesting the creamery is not selling these products or providing these services yet, but does have a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). While these applications by no means guarantee that Eden Creamery will release these Halo Top goods and services, the company is required to start selling the goods and rendering the services in interstate commerce before the applications can mature into registrations. See TMEP 1103.

If you're a Halo Top fan, keep an eye out for more delicious Halo Top products (and perhaps ice cream parlors) in the near future.

Thursday, August 10, 2017

Is NUTTY NECKLACE Merely Descriptive of Necklaces Made of Stainless Steel Nuts? Not So Fast...

On August 5th, an individual in Pennsylvania filed an application to register NUTTY NECKLACE as a trademark with the U.S. Patent and Trademark Office. The application covers "necklaces" in Class 14 and indicates the mark has been in use since January 5, 2000.
The specimen submitted with the application (which is suppose to show how the mark is actually used in commerce and is seen above) indicates that this mark is used in conjunction with the sale of "hand-crafted jewelry using stainless steel nuts." Makes sense. But is it merely descriptive, and therefore not registerable on the Principal Register without a showing of acquired distinctiveness? See TMEP 1212; 15 USC 1052(f).

Typically, a mark is considered merely descriptive if it "describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." TMEP 1209.01(b). However, if the mark is a "double entendre" in that it is a "word or expression capable of more than one interpretation" it will "not be refused registration as merely descriptive if one of its meanings is not merely descriptive in relation to the goods or services." TMEP 1213.05(c). For example, the mark NO BONES ABOUT IT was held not to be merely descriptive of boneless, pre-cooked ham given its double connotation. In re National Tea Co., 144 USPQ 286 (TTAB 1965).

Does NUTTY NECKLACE only describe a characteristic or quality of the necklaces? Or does it have another interpretation that is not merely descriptive, such as suggesting a quirky, non-traditional necklace? We'll find out what the Examining Attorney assigned to this application thinks in approximately three months.

Tuesday, August 8, 2017

TINKERBELLE THE DOG Trademark Application Filed For "Modeling" and "Personal Appearances by a Social Media Celebrity"

Oddly, this isn't the first time I've blogged about a trademark application for a "celebrity" dog. First it was Doug the Pug, now it's Tinkerbelle the Dog.
On August 3rd, an individual in New York (who appears to be Tinkerbelle's owner) filed an application to register TINKERBELLE THE DOG as a trademark with the U.S. Patent and Trademark Office. The application covers:
  • Entertainment services, namely, personal appearances by a social media celebrity (Class 41);
  • Modeling for advertising or sales promotion (Class 35); and
  • Promoting the goods and services of others; Retail store services featuring memorabilia, namely hats, calendars, stickers, notebooks, souvenir bags (Class 35).
According to the application, these services have been offered under the TINKERBELLE THE DOG mark since at least as early as June 1, 2014.

Curious to know how much of a social media celebrity Tinkerbelle the Dog really is, I did my own quick search. Surprisingly (or maybe not), the dog has 154k followers on Instagram, 13,944 followers on Facebook (along with 14,528 likes), 2,278 followers on Twitter, and made $20,000 in 2016.

Not bad for a small dog.

Friday, August 4, 2017

Is this Bud for Lunch? Anheuser-Busch Files Trademark Application for LUNCH BEER

Does Anheuser-Busch want you to drink beer with lunch? Possibly, according to a recent trademark application filed with the U.S. Patent and Trademark Office. On July 31, Anhesuer-Busch, LLC filed a trademark application for LUNCH BEER covering (you guessed it) "beer" in Class 32.
The beer giant filed the application on an "intent to use basis," suggesting it is not yet selling this beer but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). Before this application can mature into a registration (assuming the application otherwise meets statutory requirements and is not opposed), Anheuser-Busch must start selling beer under this mark. See TMEP 902.

In other words, while there's no guarantee the beer company will start selling this beer, keep an eye out for a LUNCH BEER at your local bar or grocery store in the near future.

According to my quick search, Anheuser-Busch, LLC owns 397 active trademark applications or registrations at the USPTO, including registrations for THIS BUDS FOR YOU.

Friday, July 28, 2017

Realty Company Files Application to Register Color Pink on Yard Signs As Trademark

We've all seen them. The "For Sale" signs realtor place in yards are commonplace. The signs typically take the same shape but come in a variety of colors and usually display contact information of the realtor. One company, however, is claiming the use of the color pink on these signs is its trademark and is seeking a federal trademark registration for the same.
On July 24th, the appropriately named Pink Realty, Inc. filed a federal trademark application for the "color pink as shown in the attached image."  The application covers a variety of real estate services in Class 36, including "real estate agencies" and "real estate brokerage." According to the application, Pink Realty, Inc. has been using the color pink on these signs since November 22, 2009.

The dotted lines are not part of the mark, but rather "inform the viewer where and how color is used on the product or product package, while at the same time making it clear that the shape of the product, or the shape of the product package, is not claimed as part of the mark." TMEP 1202.05(d)(i).

Is it possible to claim a color as a trademark and obtain federal registration for it? Yes. UPS, for example, owns a registration for the color brown. But obtaining a color registration is not easy.

To start, color marks are never inherently distinctive. Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 211-12 (2000). A showing of acquired distinctiveness is always required to obtain a registration, and making that showing is difficult in the context of color marks. TMEP 1202.05(a). In other words, an applicant for a color mark must demonstrate that its use of the color identifies it as the source of the good or services in the mind of consumers (i.e., when consumers see color being used in the way the applicant is using it, they associate it with the applicant). For example, when most people see a brown delivery truck, they know it's a UPS truck.

Additionally, colors that are functional cannot be registered as trademarks. See Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 165-66 (1995). Colors may be considered functional if they yield "a utilitarian or functional advantage, for example, yellow or orange for safety signs." TMEP 1202.05(b). Additionally, if a specific color is the natural by-product of a manufacturing process, that color may be considered functional ("In such a case, appropriation of the color by a single party would place others at a competitive disadvantage by requiring them to alter the manufacturing process."). Id.

Does the color pink on "For Sale" signs lend a utilitarian or functional advantage? Does it make the sign easier to see and, if so, is that a utilitarian or functional advantage? If the applicant can cross that hurdle, it will need to make a strong showing that its use of the color pink has acquired distinctiveness in the marketplace before it can obtain a registration.

Can Pink Realty obtain the rare color mark registration? Keep an eye on this application to find out.

Wednesday, July 26, 2017

Amid Controversy, HBO Files Trademark Applications for CONFEDERATE

When HBO announced a new alternate history drama based on the southern states' successful secession from the union, it drew some controversy. But that didn't stop HBO from filing two applications to register the show's title as a federal trademark a couple days later.
On July 21, Home Box Office, Inc. filed two trademark applications for CONFEDERATE, in standard characters, with the U.S. Patent and Trademark Office. HBO filed one application in Class 9 and the other in Class 41, covering the following goods and services:
HBO filed the applications on an intent to use basis, suggesting it is not using the mark in commerce with the listed goods and services yet, but has a bona fide intention to do so in the near future (which makes sense considering the show has not yet aired). TMEP 806.01(b); 15 USC 1051(b). Before the marks can register (assuming the examination process goes smoothly), HBO will need to start using the CONFEDERATE mark in interstate commerce in conjunction with the listed services (which may, or may not, happen given the controversy). TMEP 1103; 15 USC 1051(c)-(d).

According to reports, production of Confederate will begin after the final season of Game of Thrones (the Game of Thrones creators are teaming up with HBO to create Confederate).

Monday, July 24, 2017

Are JALAPENO MAC BITES Merely Descriptive of Macaroni and Cheese Bite Sized Nuggets Filed with Jalapenos?

A delicious but possibly descriptive trademark application was filed on July 19th by a Florida company called Mac and Cheese Holdings, LLC (ed. - sounds like a great place to work). On that date, the company filed a federal trademark application for JALAPENO MAC BITES covering "macaroni and cheese bite sized nuggets filled with jalapenos and cream cheese and other cheeses and coated in breadcrumbs and baked" in Class 30.
The company filed the application on an intent to use basis, suggesting it is not selling these bites yet but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). Delicious, but is it merely descriptive of the underlying goods?

Under Section 2(e)(1) of the Lanham Act, marks that merely describe the underlying goods or services are not registerable on the Principal Register (where you want to be) of the U.S. Patent and Trademark Office without a showing of acquired distinctiveness (which is very difficult to show with an intent to use application).

According to TMEP 1209.01(b), "a mark is considered merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." Even if a mark does not describe every purpose, feature, function, etc., it can still be merely descriptive if it describes one significant function, attribute, or property of the goods or services. Id.

What do you think? Does JALAPENO MAC BITES merely describe an ingredient, quality, characteristic, function, feature, purpose, or use of macaroni and cheese bite sized nuggets filled with jalapenos and cream cheese and other cheeses and coated in breadcrumbs and baked? Or is it only suggestive of the goods in that it requires "imagination, thought, or perception to reach a conclusion as to the nature of those goods..." (and therefore can be registered on the Principal Register without a showing of acquired distinctiveness)? See TMEP 1209.01(a).

Keep an eye on this application and see what the Examining Attorney thinks in about three months when the application is examined.