Wednesday, March 22, 2017

Make-up Brushes Are Coming...HBO Files GAME OF THRONE [sic?] Trademark Application for Bath, Beauty Accessories

Game of Thrones fans may soon be able to incorporate their favorite show into their bath and beauty routine if a recent trademark application is any indication. On March 17th, Home Box Office, Inc. filed a federal trademark application for GAME OF THRONE (ed. - unclear whether the "S" was left off "Throne" on purpose). The trademark application comes a couple months before the premier of the show's new season later this summer.
The interesting aspect of this application, other than the fact that "S" is left off of "Throne", is the goods covered by it. Those goods are "Cosmetic brushes, eyebrow brushes, lip brushes, make-up brushes, nail brushes, powder compacts sold empty, powder puffs, bath products, namely, body sponges, bath brushes" in Class 21. HBO filed the application on an intent to use basis, which suggest it is not yet selling these goods under the GAME OF THRONE mark but has a bona fide intention to do so in the near future. 15 U.S.C. 1051(b); TMEP 1101.

We shouldn't be too surprised by this application, however. According to my quick search, HBO previously filed 40 trademark applications related to the GAME OF THRONES mark, with 26 of those still being active at the USPTO (although this is the first one for GAME OF THRONE - no "S"). Some of those other applications cover alcoholic beverages, candles, lip balm, and cookies.

HBO previously filed an application for GAME OF THRONES covering these same bath and beauty goods in October 2013, but that application was abandoned last month after five extensions of time to file a statement of use showing the mark being used in commerce were granted. Because an applicant can only request a maximum of five six month extensions of time to file a statement of use (37 CFR 2.89(c)), a new application was HBO's only option for continuing the registration process for this particular mark.

Friday, March 17, 2017

New York Dairy Files Trademark Application for WINE ICE CREAM and Design

I have a lot of questions about this trademark application. Where can I get it? Does it contain wine (hint - yes)? Is it merely descriptive?

The answer to the first question appears to be Mercer's Dairy in Boonville, New York. On March 17, an entity doing business under that name filed this federal trademark application, an application for WINE ICE CREAM and Design, seen below. The application covers only "ice cream" in Class 30. According to the application, Mercer's Dairy has been selling ice cream under this mark since as least May 1, 2007.

According to Mercer's website, there are several flavors of wine ice cream, including Chocolate Cabernet (which I think is pictured in the applicant's specimen submitted with the trademark application and seen below), Cherry Merlot, Riesling, and Red Raspberry Chardonnay.
But is this mark merely descriptive of the underlying goods with which it is used, such that the Trademark Office will refuse registration under Section 2(e)(1) of the Lanham Act? The Trademark Office generally considers a mark to be merely descriptive if it "describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." TMEP 1209.01(b). Merely descriptive designations cannot be registered on the Principal Register without a showing of acquired distinctiveness (i.e., proof that the mark has become distinctive as applied to the applicant's goods). See TMEP 1212.

Does a picture of a wine glass and the text WINE ICE CREAM merely describe "ice cream"? We'll find out what the examining attorney assigned this application thinks in approximately three months when this application is assigned to an attorney at the Trademark Office.

Monday, March 13, 2017

Top Golf Files Trademark Applications for TOPGOLF TV, TOPGOLF RADIO

Top Golf International, Inc. had a busy day at the U.S. Patent and Trademark Office on March 8th, filing five different trademark applications. The applications filed on March 8th were for:
Is Top Golf getting into the television and radio broadcasting field? Maybe. The goods and services covered by these applications are numerous and do include "audio, video, and radio broadcasting" in Class 38. Some other goods and services covered by these applications include:
  • Entertainment and media services, namely, production and distribution of radio and television programs, video games, music and videos in the field of sports, video games and computer games (Class 41);
  • Video game software (Class 9);
  • Live music concert services (Class 41); and
  • Television and radio program broadcasting (Class 38).
Top Golf filed each of these applications on an intent to use basis, which suggests they are not currently using these marks in conjunction with the listed goods and services yet but have a bona fide intention to do so in the near future. 15 USC 1051(b). Top Golf fans rejoice. 
Interestingly, Top Golf also owns a trademark registration (on the Supplemental Register) for the configuration of its driving ranges, seen above.

According to my quick search, Top Golf International owns 7 active trademark registrations and 23 pending trademark applications at the USPTO.

Friday, March 10, 2017

NBC Files Trademark Application for Potential New Reality Competition Show

A new reality competition show titled MAGIC HOUR may be in the works over at NBC, according to a recent trademark application. On March 6th, NBCUniversal Media, LLC filed a federal trademark application for MAGIC HOUR with the U.S. Patent and Trademark Office.
The application covers "[e]ntertainment services, namely, television programming in the nature of a reality competition television series" in Class 41.  NBC filed the application on an intent to use basis, suggesting it is not currently using this trademark in commerce but has a bona fide intention to do so in the near future. In other words, simply filing an intent to use trademark application does not necessarily mean NBC will come out with a show called MAGIC HOUR, but is supposed to mean there is something currently in the works related to this potential show (business and marketing plans, scripts, contracts with talent, etc. - something more than just an idea in someone's head).

Filing trademark applications for potential television show names is not uncommon. As I've blogged about before, networks like The Cooking Channel, Twentieth Century Fox, and some production companies have all filed similar applications in the past.

Is MAGIC HOUR a talent show, competition for magicians, or something else? We can't be sure until (and if) NBC gives this show the green light.

Wednesday, March 8, 2017

Empire State Building Owner Files Trademark Application for WORLD'S MOST FAMOUS BUILDING

The Empire State Building (or, more appropriately, ESRT Empire State Building, LLC, a legal entity that appears to own the building) filed an application to register WORLD'S MOST FAMOUS BUILDING as a federal trademark on March 7th.
The services covered by the application (all of which have a first use date of February 2, 2017), are numerous and span from providing real estate leasing, to providing facilities for film and photograph production, to providing facilities for wedding ceremonies.  The full list of services covered by the application is as follows:
  • Promoting the goods and services of others by licensing images of an iconic building; providing facilities for business meetings (Class 35);
  • Real estate services, namely, leasing of commercial property, namely, gift shop space; leasing of restaurant space (Class 36);
  • Rental of telecommunication facilities; rental of equipment for radio and television broadcasting (Class 38);
  • Entertainment services, namely, providing observation decks in a skyscaper for sightseers; entertainment in the nature of laser and light shows; providing facilities for film and photo production; providing facilities for sports tournaments; educational services, namely, providing displays and exhibits in the field of engineering, construction and sustainability; educational services, namely, training educators and parents in the fields of social studies, science and technology, American history and geography and providing curricula in connection therewith (Class 41);
  • Providing a web site that gives computer users the ability to upload and share user-generated images (Class 42);
  • Providing general purpose facilities for media, celebrity and brand events; providing conference, exhibition and meeting faculties; providing banquet and social function facilities (Class 43);
  • Providing facilities for wedding ceremonies (Class 45)
This application follows a decision by the Trademark Trial and Appeal Board last year that sustained the ESRT Empire State Building, LLC's opposition to a beer company's use of the Empire State Building in a logo for beer, holding that the beer logo was likely to dilute a design mark owned by ESRT for the outline of the Empire State Building. The TTAB deemed that mark to be famous.

According to my quick search, ESRT Empire State Building, LLC owns 13 active applications or registrations with the Trademark Office, including several for EMPIRE STATE BUILDING, and a registration for THE WORLD'S MOST FAMOUS OFFICE BUILDING covering real estate management and leasing services.

Monday, March 6, 2017

Is MTV Bringing Back MY SUPER SWEET 16? A Recent Trademark Application Suggests It Might Be

The classic MTV show from the mid-2000's, My Super Sweet 16, may be getting new life, if a recent trademark application is any indication. On March 1st, Viacom International, Inc. (owner of the MTV brand) filed an application to register MY SUPER SWEET 16 as a trademark with the U.S. Patent and Trademark Office.
The services covered by the application are "[e]ntertainment services in the nature of continuing program series, featuring live action, comedy and drama provided through cable television, broadcast television, internet, video-on-demand, and through other forms of transmission media; providing online information in the field of entertainment concerning television programs" in Class 41.

Does this mean MTV is bringing back the show? Maybe. Viacom filed this application on an intent to use basis, which is supposed to suggest the company is not currently rendering the listed services under the mark, but has a bona fide intention to do so in the near future (i.e., the show is not currently on air, but there are plans in the works to possibly bring it back).

My Super Sweet 16 aired regularly on MTV from 2005 to 2008, then dropped off considerably. It appears the last episode aired in February 2015 and featured Lil Wayne's daughter Reginae. This is the first trademark application filed by Viacom for MY SUPER SWEET 16 since 2007.

Tuesday, February 28, 2017

LucasFilm Files Trademark Applications for STAR WARS: RIVALS

LucasFilm Ltd., LLC filed two applications to register STAR WARS: RIVALS as a federal trademark on February 23, but Stars Wars fans don't get excited yet. The nature of the applications is a little unclear.
LucasFilm filed the applications in two classes (one class per application), covering the following goods and services:
Both applications were filed on an intent-to-use basis, suggesting that LucasFilm is not using STAR WARS: RIVALS in commerce in conjunction with the listed goods and services yet, but has a bona fide intention to do so in the near future.

Are these applications related to a new movie, videogame, book, or maybe this fan film? Unfortunately, it is difficult to tell. If the "education and entertainment services" in Class 41 were expanded upon, it would be a little easier to discern LucasFilm's intent for this mark. Luckily for fans, LucasFilm will probably be required to expand upon these services before the mark in Class 41 will register, considering the identification is extremely broad but is required to "be specific, definite, clear, accurate, and concise." TMEP 1402.01; In re Societe Generale des Eaux Minerales de Vittel S.A., 1 USPQ2d 1296 (TTAB 1986). Not only that, but the multimedia giant must actually start using this mark in commerce and submit sufficient proof of the same if these marks are to register. See TMEP 1103.

According to my quick search, these are the first applications for STAR WARS: RIVALS filed by LucasFilm.