Friday, March 8, 2019

A PBR Seltzer? Maybe, According to Pabst Brewing Company's Recent Trademark Applications

The company behind the beer previously (or still?) known for being a favorite among hipsters may be moving into the trendy alcoholic seltzer business if recent trademark applications are any indication.
On March 4, Pabst Brewing Company, LLC filed applications to register PABST BLUE RIBBON STRONGER SELTZER and STRONGER SELTZER as trademarks for "alcoholic beverages, namely, hard seltzer" with the U.S. Patent and Trademark Office.

The brewing company filed both applications on an intent-to-use basis, suggesting it is not currently using these marks to sell the listed goods but has a bona fide intention to do so in the near future. 15 USC 1051(b); TMEP 806.01(b).

These are the only two active trademark applications or registrations for a seltzer owned by Pabst Brewing Company, LLC. Back in April 2016, the company filed an application for GILTY SELTZER covering "hard seltzer [and] hard cider" but it was refused registration due to GILT BAR, an existing registration covering bar and restaurant services. Pabst never responded to the refusal and the application went dead.

Will we see a PBR seltzer this summer? We just might. And for whiskey fans, apparently PBR recently announced it's getting into the whiskey business too.

Wednesday, March 6, 2019

Recent Trademark Applications Suggest Allegiant Travel Company May Be Expanding Well Outside the Airline Industry

Recent federal trademark applications suggest discount airline Allegiant may be getting into the restaurant and entertainment center business (and into several other businesses).
On March 1, Allegiant Travel Company (the parent company of Allegiant airlines) filed an application with the U.S. Patent and Trademark Office to register ALLEGIANT NONSTOP as a trademark for:
  • Entertainment and recreation services, namely, providing amusement and recreation center facilities with an aviation theme (Class 41); and
  • Casual restaurants with an aviation theme featuring American cuisine (Class 43)
On that same day, Allegiant Travel Company filed another application for PLAYNONSTOP covering the following:
  • Providing a website featuring issuing stored value cards for use at entertainment centers (Class 36); and
  • Providing a website featuring booking and reservation services for birthday parties at entertainment centers (Class 41)
Interestingly, these are not the first federal trademark applications outside of the airline industry filed by Allegiant Travel Company recently. Since July 2018, the company has filed applications for:
  • GOLFSEEKER for "Entertainment services, namely, providing golf course and golf club facilities; and entertainment in the nature of golf tournaments"
  • ZEN 4CE for "Providing recreational areas in the nature of quiet lounges"
  • 4CE'D ESCAPE for "Entertainment services in the nature of escape room attractions"
  • GRIP N ROLL for "Providing bowling alleys"
  • JUNIOR G'S for "Providing recreational areas in the nature of play areas for children"
  • G-PRIX for "Rental of go-karts"
  • DARK 4CE for "Providing facilities and equipment for playing laser tag games"
  • SUNSUITES for "Hotel and resort hotel services"
Do the trademark applications mean Allegiant is definitely going into these various fields? Not exactly. Allegiant filed each application on an intent-to-use basis, suggesting it is not using these marks to provide the listed services yet but has a bona fide intention to do so in the near future. 15 USC 1051(b); TMEP 806.01(b). Before these marks can register, Allegiant must start using them to render the listed services and submit sufficient proof of such use to the U.S. Patent and Trademark Office. See TMEP 1103. It is not required to start using the marks, however.

In any event, it looks like Allegiant may have big plans to expand outside the airline industry.

Monday, February 11, 2019

Czech Small Arms Company Files Application to Register CZECH SMALL ARMS as a Trademark For Firearms

On February 6, Czech Small Arms, s.r.o., a company organized in the Czech Republic, filed an application to register CZECH SMALL ARMS as a trademark for "Firearms" in Class 13 with the U.S. Patent and Trademark Office. According to the application, Czech Small Arms has used CZECH SMALL ARMS as a trademark for firearms since January 2010. The specimen submitted with the application, which is submitted to prove use of the trademark in commerce, is below.
But is the trademark primarily geographically descriptive, meaning the USPTO must refuse to register it under Section 2(e)(2) of the Trademark Act unless it has acquired distinctiveness?

To establish, at least initially, that a mark is primarily geographically descriptive, the examining attorney at the USPTO must show:
  1. the primary significance of the mark is a generally known geographic location;
  2. the goods or services originate in the place identified in the mark; and
  3. purchasers would be likely to believe that the goods or services originate in the geographic place identified in the mark.
TMEP 1210.01(a).

Is the Czech Republic a generally known geographic location? Do the firearms originate there? Are consumers likely to believe the firearms originate from the Czech Republic? If the answer to these questions is yes, Czech Small Arms will have a difficult time registering this trademark (on the Principal Register, which affords the most legal benefits, at least).

An applicant can get a primarily geographically descriptive trademark registered on the Principal Register only if it can show the mark has acquired distinctiveness under Section 2(f) of the Trademark Act. Generally, a mark acquires distinctiveness when the consuming public recognizes that the goods sold under the mark are produced by a particular manufacturer, as opposed to simply perceiving the trademark as a geographically descriptive designation. 

Sometimes a mark is presumed to have acquired distinctiveness if the applicant can show substantially exclusive and continuous use of the mark for at least five years. TMEP 1212.05. Otherwise, the applicant must submit substantial evidence to prove the mark has acquired distinctiveness. TMEP 1212.06.

If an applicant cannot prove acquired distinctiveness, it can settle for a registration on the Supplemental Register. TMEP 1210.07(a). In some cases, however, a term may be so geographically descriptive that it is deemed incapable of identifying the source of the products, and thus does not function as a trademark and cannot be registered at all. Id; see also Bee Pollen from Eng. Ltd., 219 USPQ 163 (TTAB 1983) (finding BEE POLLEN FROM ENGLAND incapable of distinguishing bee pollen from England).

What do you think? Is CZECH SMALL ARMS primarily geographically descriptive of the underlying goods? If so, do you think the CZECH SMALL ARMS mark is well-known enough so that it might be registered on the Principal Register with a Section 2(f) claim? Or is the mark too geographically descriptive to even be registered on the Supplemental Register? 

We'll see what the examining attorney at the USPTO thinks in approximately three to four months when this application is reviewed.

Friday, February 8, 2019

Is TEXAS PRISON WEDDINGS Merely Descriptive of Officiating...Texas Prison Weddings?

On February 4, an individual in Texas filed an application to register the words TEXAS PRISON WEDDINGS as a trademark with the U.S. Patent and Trademark Office. According to the application, the mark has been in use since December 20, 2015. A specimen submitted with the application, which covers "Providing wedding officiant services" in Class 45, is below.
But is TEXAS PRISON WEDDINGS merely descriptive of "providing wedding officiant services"? If so, the USPTO must refuse registration under Section 2(e)(1) of the Trademark Act (unless the mark has acquired distinctiveness).

According to TMEP 1209.01(b), a mark is merely descriptive if "it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." This determination involves "consideration of the context in which the mark is used..." Id. An examining attorney at the USPTO can look to sources like "websites, publications, labels, packages, advertising material, and explanatory text on specimens for the goods and services" to determine whether the mark is descriptive. Id. In sum, if a mark "immediately conveys knowledge of a quality, feature, function, or characteristic of an applicant’s goods or services," it is merely descriptive. Id.

So does the term TEXAS PRISON WEDDINGS immediately describe or convey knowledge of a quality, feature, function, or characteristic of the applicant's services, which are wedding officiant services directed towards Texas prisons, according to the specimen?

If the answer is yes, the applicant will need to (1) overcome the refusal by submitting arguments as to why the term isn't descriptive, (2) convince the USPTO that TEXAS PRISON WEDDINGS has acquired distinctiveness and is therefore eligible for registration on the Principal Register (extremely difficult to do, especially when the mark is less than five years old), (3) amend the application to the Supplemental Register, or (4) let the application lapse.

What do you think?

Wednesday, February 6, 2019

Kamala Harris Files Two Applications to Register Her Campaign Slogan as a Trademark

Presidential campaign season is kicking off again and with that comes federal trademark applications for various campaign slogans and logos. The most recent applications come from Kamala Harris, who recently announced her candidacy for president on January 21, 2019.

Almost two weeks later, on February 1, 2019, the Kamala Harris for the People non-profit corporation filed two trademark applications with the U.S. Patent and Trademark Office. The first application is for the words KAMALA HARRIS FOR THE PEOPLE, while the second is for the stylized version seen below.
Both applications cover the exact same goods and services, which are goods and services you'd expect a campaign-related trademark application to cover, such as:
  • Political campaign services, namely, promoting public awareness of Kamala Harris as a candidate for public office; providing online information regarding the 2020 presidential election; online retail store services (Class 35); 
  • Political campaign services, namely, fundraising in connection with the 2020 presidential election (Class 41);
  • Jewelry; lapel pins; cuff links (Class 14);
  • Yard signs; placards and banners; posters (Class 16); and
  • Apparel; headwear (Class 25).
These are the first federal trademark applications filed by the Kamala Harris for the People non-profit corporation. An attorney in the Seattle office of Perkins Coie filed the applications.

This isn't the first time I've blogged about a campaign-related trademark application, nor are such applications uncommon. In August 2015, Donald Trump filed an application for TRUMP covering a variety of campaign materials (that application matured into a registration). Later in August 2016, Evan McMullin filed an application for his presidential campaign logo (which is still registered). And finally, Kid Rock filed an application for KID ROCK FOR SENATE, despite apparently never having an intention to run for Congress (that application was refused for a variety of reasons and may not register).

Expect the filing of more campaign-related trademark applications as the campaign trail starts to heat up.

Wednesday, January 16, 2019

Is Lindsay Lohan Bringing Her Beach and Night Clubs to the United States? Recent Trademark Applications May Provide Hints.

Lindsay Lohan's new show on MTV, Lindsay Lohan's Beach Club, just aired its first episode last week. The show follows the dramatic staff of her Lohan Beach House beach club in Mykonos, Greece, which Lohan opened in May 2018. Back in October 2016, Lohan opened the "Lohan Nightclub" in Athens, Greece.

Does the actress now have plans to open a nightclub or beach club in the United States? Well, she recently filed a dozen federal trademark applications in the United States, several of which are for the logos of her beach/nightclubs and all of cover dance and nightclub services, along with a variety of other goods/services.

On January 11, Crossheart Productions, Inc. (Lohan's company) filed twelve trademark applications with the U.S. Patent and Trademark Office. The applications are for (1) the logo seen above, (2) the same logo without "LOHAN," and (3) the words LINDSAY LOHAN. The applications cover the following goods/services in four classes:
  • Dance club services; Discotheques; Entertainment services in the nature of an ongoing reality based television program; Entertainment 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; Entertainment services, namely, personal appearances by a n actress; Fan clubs; Night club services; Night clubs; Providing on-line entertainment information, namely, information about television programming (Class 41);
  • Bar services; CafĂ© services; Hotel and restaurant services; Hotel services; Hotel, restaurant and bar services; Resort hotel services; Restaurant and bar services; Restaurant services (Class 43);
  • Various clothing items, including beach cover-ups, beach footwear, camisoles, dresses, pareos, and sarongs (Class 25); and
  • Various cosmetic items, including body lotions, make-up, body scrubs, shower gels, shampoo, and perfumery (Class 3).
Lohan filed each version of the logo in each class and the words LINDSAY LOHAN in each class (hence the 12 total applications). The applications also included Lindsay Lohan's written consent to register her name as a trademark for these goods and services, which is required under Section 2(c) of the Trademark Act.

Does this mean Lohan is opening a night club or dance club in the United States? We can't tell from the applications alone, but we can make some inferences.

First, these applications were filed on an intent-to-use basis, which requires that the applicant have a "bona fide" intention of using these trademarks in conjunction with the listed goods/services in the near future. See TMEP 806.01(b). If Lohan had no intention of using these marks with some or all of the goods/services listed, any subsequent registration covering those goods/services is void with respect to those goods/services.

Second, Lohan must eventually start using these trademarks in conjunction with the listed goods/services before they can be registered and submit sufficient proof of such use to the USPTO. See TMEP 1103. In other words, if she wants a trademark registration that covers bar services, dance club services, or nightclubs, she must start operating a bar, dance club, or nightclub. Otherwise, she'll need to delete those goods/services from the application or let the application lapse.

Third, trademark rights are territorial, so Lohan can't rely on use of these trademarks with these goods/services in Greece to prove use in the United States (at least not under the current filing basis of the applications). And why file trademark applications for these goods/services in the United States unless you intend to provide them here? While they might offer her protection in the United States, they won't do much for her in Greece (she likely has similar trademark registrations in Greece).

In sum, while Lohan fans wanting a club in the United States shouldn't get overly excited, it does appear something is in the works. Pay attention to these trademark applications to find out.

Monday, January 14, 2019

POPSUGAR Inc. Files Application to Register Its Popular #TWINNING Hashtag as a Trademark

POPSUGAR's #Twinning celebrity lookalike tool took off in popularity a couple weeks ago. The tool allows you to upload a selfie, then uses an algorithm to match you with your celebrity "twin." Social media users have been posting the matches to their friends and followers under the hashtag #Twinning (which is also the name of the tool).
The hashtag is now the subject of a federal trademark application, which POPSUGAR Inc. filed on January 9th. The #TWINNING application covers the following services in Class 42:
providing temporary use of on-line, non-downloadable software to match the photograph of the user with similar photographs or images of celebrities, public figures or pop culture characters, for entertainment purposes
According to the application, POPSUGAR first started using #TWINNING as a trademark in conjunction with these services in February 2018. The screenshot above is the specimen POPSUGAR submitted with the application to prove it is using the hashtag as a mark. See TMEP 1301.04.

Don't let this application fool you into thinking any hashtag can be registered as a trademark. They can't, because "the hash symbol and the wording HASHTAG do not provide any source-indicating function because they merely facilitate categorization and searching within online social media..." TMEP 1202.18. However, hashtags can be registered as trademarks if they function as an identifier of the source of the applicant's goods or services. Id. If POPSUGAR only used #Twinning as a hashtag on social media, it would not be able to register the term as a trademark. But because the hashtag is also the name of the software tool, POPSUGAR has a better chance of getting it registered. See TMEP 1202.18(b).

A quick search of the U.S. Patent and Trademark Office's database reveals POPSUGAR currently owns 59 active trademark applications or registrations (though this is the first one for #TWINNING).

On another note, did you submit your selfie to the #Twinning tool? Before you do, you might want to read POPSUGAR's terms. As noted by The Fashion Blog, by uploading your image to the #Twinning tool, you are granting POPSUGAR a very broad license to use your image for nearly any purpose (though such broad licenses aren't uncommon in the social media space).