Tuesday, March 28, 2017

Chrissy Teigen Files Application to Register CHRISSY TEIGEN as a Trademark

Chrissy Teigen, a celebrity, model, social media star, actor, who is also married to John Legend, has filed a application to register her name as a federal trademark (and this appears to be her first attempt to do so).

On March 23, a New York corporation called Suit & Thai Productions, Inc. (which Chrissy may be the president) filed a federal trademark application for CHRISSY TEIGEN. According to my quick search, this is the very trademark application filed by Suit & Thai Productions and the first application for CHRISSY TEIGEN ever filed with the U.S. Patent and Trademark Office.
The goods and services covered by this application, some of which are based on current use in commerce and some based on an intent to use, are as expansive as the celebrity's various undertakings.

Some of the goods and services covered that, according to the application, are already being offered in conjunction with the CHRISSY TEIGEN mark are: modeling services; television and motion picture film production services; personal appearances by a media celebrity, model, and actress; production of music, sound recordings, radio and television programs; books; magazines; and cook books.

Some of the goods and services covered that, according to the application, aren't currently being offered but might be offered under the CHRISSY TEIGEN name in the future include cosmetics; phone cases; various clothing and apparel; furniture and home furnishing; and retail store services featuring cosmetics.

How do we know the real Chrissy Teigen filed this trademark application? Under Section 2(c) of the Trademark Act, a trademark application for any name, portrait, or signature that identifies a living individual, or a deceased president of the U.S. during the life of the president's widow, cannot be registered without the written consent of the individual identified in the application (or by the president's widow). See also TMEP 1206.

Pursuant to Section 2(c), this trademark application included a written consent from Chrissy, seen above, to register this mark (the consent also states she is the president of Suit & Thai Productions, Inc.). A link to the full consent is here.

As I've blogged about before, it is not uncommon for celebrities and athletes to file trademark applications covering their names and nicknames. The trademark rights offered by a federal registration can be another powerful tool, sometimes used in conjunction with right of publicity laws, to control the use of a celebrity's or athlete's name.

Monday, March 27, 2017

Apple Files Trademark Application for New Icon Based on Prior-Filed App in Trinidad & Tobago

As one might expect, Apple Inc.'s federal trademark portfolio is quite expansive. As I've blogged about before, Apple has filed over 1,000 trademark applications with the U.S. Patent and Trademark Office, including several for the various icons found on many of its electronic devices.

An application filed on  March 22 appears to be for one of those icons. One that date, Apple filed a federal trademark application for design seen below covering "computer software for transmitting, streaming, receiving, playing, routing and storing audio, video, images, and multimedia content" in Class 9.

Apple filed the application for this icon on an intent to use basis, suggesting it is not yet using this mark but has a bona fide intention to do so in the near future.

Interestingly, Apple is claiming, under Section 44(d) of the Trademark Act (15 USC 1126(d)), a priority date of September 23, 2016 based on a trademark application for this mark it filed in Trinidad and Tobago on that date. This is a strategy Apple and other companies have been known to use to establish an earlier filing date while keeping the contents of the trademark application secret, because some countries, like Trinidad and Tobago, do not maintain publicly accessible trademark databases like the U.S. Under Section 44(d), so long as the U.S. application is filed within six months of the foreign application, and the applicant has a bona fide intent to use the mark in the U.S., an applicant can claim priority relating back to the filing date of an application filed in most foreign countries. See also TMEP 1003.

So what is this new icon? Is it related to the iPhone 8 set to be released later this year? As far as I can tell, it appears to be a combination of the AirPlay and AirDrop features on the current iPhones (pull up the shortcut menu from the bottom of your screen and you'll see what I mean). Other than that, it is unclear.

Although Apple has filed thousands of trademark applications in the past, 2017 seems to be off to a slower start. According to my quick count, Apple has filed only four U.S. trademark applications so for (including one of the icon above). Two of those applications were related to television shows: one for VITAL SIGNS covering, in part, "entertainment services in the nature of ongoing television programs in the field of drama" and the other for PLANET OF THE APPS covering, in part, "an ongoing reality based television program provided through the Internet."

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.

Update: On March 22nd, about 45 minutes after I posted this article, HBO filed a voluntary amendment to add an "S" to the mark, therefore correcting the typo and changing the mark to GAME OF THRONES.

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.