Friday, August 30, 2019

The San Antonio Spurs Are Filing Trademark Applications for Hockey Teams

Is minor league hockey coming back to San Antonio? Recent trademark applications suggest it might be.

On August 26, San Antonio Spurs, LLC d/b/a Spurs Sports & Entertainment filed four hockey-related trademark applications with the U.S. Patent and Trademark Office - one for the words SAN ANTONIO IGUANAS, one for the words SAN ANTONIO DRAGONS, and applications for the related logos seen below.

Both the Dragons and the Iguanas used to be minor league hockey teams in San Antonio. The Dragons were a team in the International Hockey League for two seasons from 1996-1998. The Iguanas were in the Central Hockey League and active from 1994-1997 and again from 1998-2002. Both teams played at Freeman Coliseum.

These trademark applications cover a variety of clothing items, like uniforms, shirts, pants, and hats, as well as a variety of merchandise like autograph books, printed guides in the field of hockey, and stickers, so it's possible the Spurs only intend to sell vintage hockey apparel and merchandise. 

The services in Class 41, however, are the most interesting. They cover "Entertainment services in the nature of hockey games and hockey related exhibitions." These are services typically seen in a trademark registration for a hockey team (like this one for the Boston Bruins).

Does this mean minor league hockey is actually coming back to San Antonio? Not necessarily. Although the Spurs filed these applications on an intent-to-use basis (see TMEP 806.01(b)), which requires them to have a bona fide intention to use these trademark in conjunction with the listed goods and services (including hockey games), it in no way requires the Spurs to start using the marks with those goods and services. However, if the Spurs want to obtain a registration for these marks in Class 41, they'll eventually need to actually start using these marks in conjunction with hockey games and submit sufficient proof of same to the USPTO. See TMEP 1103.

Filing trademark applications for vintage teams isn't uncommon. Back in April, I blogged about the NFL's trademark applications for DULUTH ESKIMOS, an old football team. 

According to my quick search, these trademark applications are the first federal applications for hockey-related goods/services ever filed by San Antonio Spurs, LLC.

Tuesday, August 20, 2019

Palm Springs AHL Affiliate Files Three More Trademark Applications for Potential Team Names

Oak View Group, LLC, the owner of Seattle's new NHL franchise, added three more candidates to the list of possible names for the team's AHL affiliate in Palm Springs. On August 15, the group filed three new trademark applications with the USPTO for:
All the applications cover "Entertainment in the nature of hockey games" in Class 41. The applications were filed by the same attorney and law firm that filed three other trademark applications for potential team names earlier in August that cover the same services:
These earlier applications seemed to suggest a "bird" theme for the new AHL team, but the recent applications for "DRAGONS" and "SUN" indicate that might not be the case.

It's not uncommon for a new team to file multiple trademark applications on an intent-to-use basis for potential team names. Back in June 2016, I blogged about several filings for Tucson, Arizona's new AHL team (the Arizona Coyotes affiliate). That team ended up choosing the TUCSON ROADRUNNERS. And back in January 2016, I blogged about applications for the LA CHARGERS filed by the Chargers Football Company before the NFL teamed moved to LA.

While you may see more trademark filings by the Oak View Group, LLC, it's very possible the name of the new AHL team in Palm Springs will be one of those listed above.

Thursday, August 15, 2019

Recent Trademark Applications Suggest Yuengling Brewery May Be Launching a New Beer Called "Yuengling Flight"

Is a new beer in the works over at Yuengling? Recent trademark applications filed with the U.S. Patent and Trademark Office suggest so.
On August 9, D.G. Yuengling & Son, Inc. filed two federal trademark applications with the U.S. Patent and Trademark Office - one for the design seen above and the other for the words YUENGLING FLIGHT. Both applications cover "beer" in Class 32.

Yuengling, which is the oldest operating brewing company in the United States, filed both applications on an intent-to-use basis. That basis indicates the brewery is not currently using this name and logo in commerce as a trademark for beer yet, but has a bona fide intention to do so in the near future. See TMEP 806.01(b).

In other words, it seems these applications are for the name and logo of a new beer that Yuengling plans to release in the near future. That's especially true considering the brewery will need to submit labels or packaging for a beer that shows these marks before the marks can be registered. See TMEP 904.03. Had these applications listed something like "brewery services," I would not be as convinced they are for the name/logo of a beer rather than something like an advertising slogan for the brewery as a whole.

Last year, Yuengling launched a new "Spread Your Wings" advertising campaign that pays tribute to the brewery's original name - "Eagle Brewery" - and the eagle design featured on its labels. These recent trademark applications, therefore, appear to be very on brand.

According to my quick search, these are the only federal trademark applications filed by D.G. Yuengling & Son, Inc. in 2019.

Thursday, July 25, 2019

Hot Girl Summer is Here - Megan Thee's Record Label Files Five Applications to Register HOT GIRL SUMMER as a Trademark

It's been dubbed the "catchphrase of summer 2019" and now it's the subject of five federal trademark applications. Rapper Megan Thee reportedly coined the term HOT GIRL SUMMER earlier this year, which she says means "“It’s just basically about women — and men — just being unapologetically them, just having a good-ass time, hyping up your friends, doing you, not giving a damn about what nobody got to say about it." With the phrase taking off, it appears Thee's record company is now taking steps to protect it through federal trademark registrations with the U.S. Patent and Trademark Office.
On July 21, Theory Entertainment, LLC (the legal entity that owns the 300 Entertainment logo trademark registration, which is Thee's record label) filed five trademark applications for HOT GIRL SUMMER, each in a different class (hence the five applications), covering:
The applications were filed on an intent-to-use basis, which means the record label must actually use the phrase as a trademark for the listed goods and services before these applications can mature into registrations. See TMEP 1101 et. seq.

On that same day, Theory Entertainment filed trademark applications for REAL HOT GIRL SHIT, COGNAC QUEEN, and TINA SNOW, all covering the same goods and services. Back in April 2019, the label filed similar applications for HOT GIRL MEG and MEGAN THEE STALLION.

A few days ago, incorrectly reported that Thee filed a trademark application for HOT GIRL SUMMER on July 10. While an application to register HOT GIRL SUMMER as a trademark for clothing was filed on July 10, it was not filed Thee or her label, but rather by an individual in D.C. who appears to have no relation to the rapper. Procedurally, because that application was filed before Thee's applications, it will be a barrier to Thee's registration of the same mark, but Thee has several options for getting over that barrier, both inside and outside the USPTO (a cease and desist letter, obtaining an assignment of the mark, opposing the application, etc.). 

Tuesday, July 9, 2019

Toy Company WowWee Files Application to Register BOTTLE CAP CHALLENGE as a Trademark

Have you heard of the viral Bottle Cap Challenge making its rounds on social media in recent weeks? The challenge involves normal people (and celebrities) unscrewing a bottle cap with a round house kick. Exciting, huh?
One company, however, is trying to register the phrase as a federal trademark. On July 4, Hong Kong-based toy company WowWee filed an application to register BOTTLE CAP CHALLENGE as a trademark with the U.S. Patent and Trademark Office. The application covers "Games, toys and playthings" in Class 28. WowWee filed the application on an intent-to-use basis. TMEP 806.01(b); 15 USC 1051(b).

Does this mean WowWee can prevent others from using the term BOTTLE CAP CHALLENGE? No.

For starters, the vast majority of those using "Bottle Cap Challenge" are not using it as a trademark (i.e., to identify the source of goods or services). They are only using it as the name of a particular viral challenge. And this fact may make it harder for WowWee to register it as a trademark. See TMEP 1202.04(b) ("The more commonly a term or phrase is used in everyday speech or in an associational or affinitive manner by various sources, the less likely consumers will perceive the matter as a trademark or service mark for any goods and services.").

Further, WowWee's trademark application only covers "Games, toys and playthings." If this application actually registers, WowWee's trademark rights are limited to those goods and anything related to them. Selling unrelated goods or offering unrelated services under the same mark will not infringe the toy company's trademark rights.

And finally, because the trademark application was filed on an intent-to-use basis, WowWee must actually start using BOTTLE CAP CHALLENGE as a trademark for "Games, toys and playthings" and submit sufficient proof of such use to the USPTO before this mark can be registered. See TMEP 1103. If they never start selling toys under this trademark, the application will eventually go dead and the mark won't register.

According to my quick search, this is the first and only federal trademark application for BOTTLE CAP CHALLENGE pending with the USPTO.

My best guess as to why the toy company filed this application? They probably want to market some type of toy or game based on the Bottle Cap Challenge.

Tuesday, June 25, 2019

Sugar Factory Restaurant Files Application to Register Configuration of Colored Sandwich Buns as a Trademark

Colored hamburger buns as a trademark? That's what Sugar Factory, LLC is trying to register by way of a recent application filed with the U.S. Patent and Trademark Office. The restaurant, which has multiple locations nationwide and is apparently frequented by celebrities, filed the application for the mark seen below on June 20th.
The application describes the mark as:
[A] three-dimensional configuration of five burgers, sliders or sandwiches, with the first burger, slider or sandwich having top and bottom buns depicted in the color blue, the second burger, slider or sandwich having top and bottom buns depicted in the color red, the third burger, slider or sandwich having top and bottom buns depicted in the color yellow, the fourth burger, slider or sandwich having top and bottom buns depicted in the color green, and the fifth burger, slider or sandwich having top and bottom buns depicted in the color purple. The broken lines depicting a toy duck, a plate, the shape of the buns, and certain components of burgers, sliders or sandwiches indicate placement of the mark on the goods and are not part of the mark.
The goods covered by the application are "Burgers; sandwiches, sliders." According to the application, the Sugar Factory has used the mark since April 2017.

The specimen submitted with the application, which is supposed to show how the mark is actually used, is below.
A color may be registered as a trademark if it is not functional and shown to have acquired distinctiveness on or in connection with the applicant's goods or services. TMEP 1202.05. A color is functional if it "yields a utilitarian or functional advantage, for example, yellow or orange for safety signs." TMEP 1202.05(b). Further, an applicant must demonstrate that the color mark has acquired distinctiveness, or "source-indicating significance in the minds of consumers." TMEP 1202.05(a). This is a substantial burden. Id.

Does a series of colored sandwich buns yield a utilitarian or functional advantage, like red on a stop sign or yellow/orange on a safety sign? Do you think consumers will recognize the Sugar Factory as the source of these colored sandwich buns? We'll see what the USPTO thinks when this application is assigned to an examining attorney in approximately three months.