Friday, July 20, 2018

Boeing Files Trademark Applications Covering On Demand Air Taxis and Autonomous Cargo Delivery Systems

Are "on demand air taxis" in the works over at The Boeing Company? Maybe, according to recent trademark applications filed at the U.S. Patent and Trademark Office.
On July 16th, The Boeing Company filed two trademark applications covering those services and others - one for the words BOEING NEXT and one for the stylized version seen above. Both applications cover the same services in Class 12, namely:
Autonomous and manned air mobility solutions, including on demand air taxis and autonomous cargo delivery systems
The Boeing Company filed both applications on an intent-to-use basis, suggesting the aviation company is not currently using this name as a trademark in conjunction with the listed services but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b).

Will you be able to summon air taxis on demand and have your cargo delivered by drones from Boeing in the near future? Maybe. According to CNBC, Boeing NeXt is a "new internal division set up to tap into the growing market of autonomous flight."

Earlier in July, The Boeing Company filed another application to register THE FUTURE IS BUILT HERE as a trademark for a variety of goods and services, including "autonomous vehicles, drones, unmanned aerial vehicles (UAVs)" and "maintenance, repair, and overhaul of aircraft, spacecraft, autonomous vehicles, drones, and unmanned aerial vehicles (UAVs) and parts therefor."

According to my quick search, The Boeing Company currently owns 255 active trademark applications or registrations with the USPTO.

Tuesday, July 17, 2018

Owner of Popular Instagram Account boopmynose Files Application to Register BOOP MY NOSE as a Trademark

Do you love animals? Do you love booping them on the nose (both physically and virtually)? If so, this trademark application is for you.

On July 12th, Bobiliah LLC, the Florida limited liability company apparently behind www.boopmynose.com and the popular boopmynose Instagram account, filed an application to register BOOP MY NOSE as a trademark with the U.S. Patent and Trademark Office.
A post shared by Boop My Nose ™ (@boopmynose) on

Bobiliah LLC filed in the application in Class 41 for "Providing a website featuring animal photographs for entertainment purposes; providing non-downloadable online videos featuring animals for entertainment purposes; providing animal photographs through social media for entertainment purposes." According to the application, Bobiliah has been using this phrase as a trademark since August 31, 2015.

According to the company's website, Boob My Nose is "the original booping community" and has approximately 600k followers on social media (the most popular account being its Instagram account, which boasts 368k followers). Fans can submit a picture of their pet's face that prominently features the nose (mostly dogs and cats, but there are horses, cows, pigs, and a variety of other animals) and other's can "boop" the nose by double tapping the photographs on Instagram to "like" the photo. A recent post from the boopmynose Instagram account is seen above.

This isn't the first federal trademark application filed by Bobiliah LLC. The company owns five existing trademark registrations - four for the words LEASH YOURSELF and one for a related logo, all covering services related to an online database for finding pets available for adoption.

This isn't the first time I've blogged about a trademark application related to a popular Instagram account. Two years ago, I blogged about an application for #MRSTEALYOURGRANDMA filed by the viral (at the time) Mr. Steal Your Grandma. That trademark substantially registered. Last year, I blogged about the popular Tinkerbelle The Dog and a trademark application for that name. That application is on its way to registration as well.

If you're interested in booping some noses, you know where to go.

Wednesday, July 11, 2018

Is SAKE ICE CREAM Merely Descriptive of, or Generic for, Providing Sake Ice Cream and Ice Cream Parlors?

As a matter of practice, when filing a federal trademark application, I generally try to avoid using the term I'm trying to get registered in the identification of goods/services listed in the application. Such use generally signals that the designation the applicant seeks to register is merely descriptive of the underlying goods/services or, worse, generic for them.

Merely descriptive designations cannot function as trademarks until (and if) they acquire distinctiveness and the U.S. Patent and Trademark Office ("USPTO") will refuse to register merely descriptive designations on the Principal Register under Section 2(e)(1) of the Trademark Act. Generic terms can never function as trademarks and the USPTO will absolutely refuse to register such terms as trademarks.
Take a recent application for SAKE ICE CREAM filed by a New York LLC, for example. This application, filed on July 6th, covers
Catering services; Ice cream parlors; Providing of food and beverages namely sake ice cream for consumption on and off the premises; Provision of food and drink namely sake ice cream in restaurants and liquor stores and exhibition spaces; Services for providing food and drink namely sake ice cream
Is SAKE ICE CREAM merely descriptive of these services? Generic?

The USPTO will deem a mark merely descriptive "if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." TMEP 1209.01(b). Additionally, "the mark need not describe all the goods and services identified, as long as it merely describes one of them." Id. For example, the mark APPLE PIE was deemed merely descriptive of potpourri that smelled like apple pie. In re Gyulay, 820 F.2d 1216 (Fed. Cir. 1987).

The USPTO will deem a designation generic "if its primary significance to the relevant public is the class or category of goods or services on or in connection with which it is used." TMEP 1209.01(c)(i). The USPTO applies a two part test: (1) what is the genus of goods or services at issue? and (2) does the relevant public understand the designation primarily to refer to that genus of goods or services? For example, the term SCREENWIPE for premoistened antistatic cloths for cleaning computer and television screens was determined to be generic for those goods. In re Gould Paper Corp., 834 F.2d 1017, 1018 (Fed. Cir. 1987).

Is SAKE ICE CREAM merely descriptive of the services of providing sake ice cream? Or is it generic? If the mark sought to be registered was ICE CREAM without "SAKE" in front, would it change your opinion?

The determination is significant - generic terms can never function as trademarks and never be registered, but merely descriptive terms may become trademarks upon a showing of acquired distinctiveness and the USPTO will register such terms (if in use) on the Supplemental Register until (and if) the applicant proves acquires distinctiveness. For more on acquired distinctiveness, see TMEP 1212 et seq.

We'll find out what the examining attorney assigned to this application thinks in approximately three months.

Thursday, June 28, 2018

Applications Filed to Register I REALLY DO CARE Phrases as Trademarks After Melania Trump Wears Controversial Jacket

On her way to visit migrant families in Texas last week, First Lady Melania Trump sported a Zara jacket with the phrase "I really don't care do u?" emblazoned on the back. The choice of apparel ignited a controversy regarding the administration's attitude towards the migrant families. It also prompted many celebrities to respond by printing various "I really do care" phrases on the back of their own jackets and led to at least two federal trademark applications for similar phrases (although they don't appear to be filed by celebrities or major apparel companies).
On June 22, a joint venture in California filed an application to register the words I REALLY DO CARE, DO U? as a trademark for various athletic apparel (see specimen submitted with the application above). Additionally, on June 23, a corporation in Florida filed an application to register I REALLY DO CARE. DON'T U? as a trademark for various apparel (see specimen submitted with application below).
Unfortunately for these applicants, their slogans will likely be refused registration on the basis of ornamentation. Merely decorative subject matter, which does not identify and distinguish an applicant's goods, does not function as a trademark and therefore cannot be registered as one. See TMEP 1202.03. Slogans or phrases used on items such as t-shirts and sweatshirts are routinely refused registration because "purchasers will perceive [them] as conveying a message rather than indicating the source of the goods." TMEP 1202.03(f)(i).

When you see the phrases on the shirts above, do you see a message being conveyed? Or does it tell you the source of the shirt? If you see a message being conveyed, rather than the source of the shirt (i.e., Nike, adidas, Hanes), the use is probably ornamental, not trademark use. We'll see what the examining attorneys assigned to review these applications at the USPTO think in about three months.

Wednesday, June 27, 2018

Anheuser-Busch Files Applications to Register FROSE-A-RITA, BERRY-KIWI-RITA, and Several Other "-RITA's" as Trademarks

The month of June was a busy time for Anheuser-Busch and RITA-themed trademark applications. The beverage giant filed six applications to register various -RITA marks this June (ed. - appropriate summer trademarks, no?) and appears to be expanding this line of products, if these trademark applications are any indication. The application filed this month are for:
Anheuser-Busch filed each application in Class 32 for "flavored beer." The applications were filed on an intent-to-use basis, suggesting Anheuser-Busch is not currently using these trademarks with flavored beer but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1052(b). Before these applications can register, Anheuser-Busch must start using these trademarks in conjunction with the sale of flavored beer and submit sufficient proof of same to the U.S. Patent and Trademark Office, like it did for an application it filed in 2016 for BUD LIGHT LIME COCO-NUT-RITA SPLASH (see image to the right for the evidence filed).

In December 2016, I blogged about Anheuser-Busch's application for GRAPE-A-RITA, which has since registered. Back in August and September 2016, the beverage company filed trademark applications for BUD LIGHT LIME COCO-NUT-RITA SPLASH, BUD LIGHT LIME PINE-APPLE-RITA SPLASH, BUD LIGHT LIME PEACH-A-RITA, and BUD LIGHT LIME ORANGE-A-RITA. All those applications, except BUD LIGHT LIME COCO-NUT-RITA, were abandoned because Anheuser-Busch did not submit proof it was using those trademarks by the deadline to do so. However, Anheuser-Busch refiled similar marks without "Bud Light Lime" in front and obtained registrations for those (like PEACH-A-RITA and ORANGE-A-RITA).

According to my quick search, Anheuser-Busch currently owns 463 active trademark applications or registrations with the U.S. Patent and Trademark Office. And yes, a registration for DILLY DILLY covering "beer" is one of them.

Wednesday, June 6, 2018

Bacardi Files Application to Register Grey Goose Bottle Design as a Trademark

Recognize the source of the bottle below? If so, it might be functioning as a trademark, which is exactly what Bacardi is banking on given its recent federal trademark application for this bottle design.
On June 1st, Bacardi & Company Limited filed an application with the U.S. Patent and Trademark Office to register the design above as a trademark. Bacardi filed the application in Class 33 for "alcoholic beverages except beers" and described the mark as
a bottle with a narrow neck which has a blue and white neck label with white geese imprinted on a blue band on the bottom of the neck label. Centered on the front of the bottle is a silhouette of a large goose and several smaller geese behind and in front of the larger goose. These geese appear to be flying over a mountainous lake design which is generally blue with some white for shading purposes. There is a flock of white flying geese above the lake. Below the mark is a rectangle comprising a blue portion on the left, a red portion on the right, and a white portion in the middle.
Can product designs or packaging function as trademarks? Yes, if they are (1) non-functional and (2) distinctive. TMEP 1202.02. In other words, the product design or packaging must not be essential to the use or purpose of the article or affect the cost or quality of it (i.e., non-functional) and, by its intrinsic nature, serve to identify a particular source (i.e., it is distinctive). See TMEP 1202.02(a)(iii)(A) and TMEP 1202.02(b)(i).

Bacardi has had success registering bottle designs as trademarks in the past. For example, it owns a registration for the Grey Goose Le Melon bottle design and the Dewar's White Label bottle design, among others.

In this case, however, Bacardi may need to clarify some things before it can obtain a registration. For example, is the Grey Goose design Bacardi seeks to register for a two-dimensional depiction of the bottle or for a three-dimensional bottle design? The USPTO asked Bacardi the same thing in an application Bacardi filed for a Bacardi rum bottle back in December 2017. Specifically, in that case the USPTO asked Bacardi to indicate whether the application was for a three-dimensional configuration of the goods or packaging or a specific design feature of the goods or packaging. Because the mark description for the Grey Goose bottle does not specify whether it is for a three-dimensional configuration, Bacardi may need to indicate as much again.

According to my quick search, Bacardi & Company owns 197 active trademark applications or registrations with the USPTO, several of which are for bottle designs and/or bottle configurations (like this one for the Grey Goose VX bottle).