Friday, May 26, 2017

Delaware Company Files Trademark Application for COTTON CANDY COMB OVER...Any Problem?

When I clicked this trademark application, I had an idea as to what it may be referring, and sure enough my suspicions were confirmed. On May 22nd, a Delaware company called Integrity Brands, LLC filed a federal trademark application with the U.S. Patent and Trademark Office for COTTON CANDY COMB OVER [standard characters] covering "candy; cotton candy" in Class 30. According to the application, the applicant has been using this mark since at least April 1, 2017.

The specimen submitted with the application, which shows the manner in which the mark is seen by the public (see TMEP 904 et. seq.) and is pictured below, shows you where the applicant got this unique idea for their cotton candy.
Are there any issues with this application? Is the applicant entitled to a federal registration for this mark? A couple sections of the Trademark Act that might apply are discussed below.

Section 2(c) of the Trademark Act (15 USC 1052(c)) is an absolute bar to the registration of a mark that "consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent..." This bar applies not only to full names, but also "first names, surnames, shortened names, pseudonyms, stage names, titles, or nicknames." TMEP 1206.01.

However, unlike the application for TRUMPMOJI that I blogged about last year, which was refused registration under Section 2(c) for using Trump's name, this mark does not contain anything referring to Trump, just the words COTTON CANDY COMB OVER. The specimen shows how the public views the mark, but nothing other than the words COTTON CANDY COMB OVER are the subject of this trademark application.

What about Section 2(a) (15 USC 1052(a)), which bars the registration "of a designation that consists of or comprises matter which, with regard to persons, institutions, beliefs, or national symbols, does any of the following: (1) disparages them; (2) falsely suggest a connection with them; (3) brings them into contempt; or (4) brings them into disrepute"? TMEP 1203.03.

When it applies to a non-commercial interest, the elements of a Section 2(a) disparagement refusal are:
  1. What is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services; and
  2. If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group. 
TMEP 1203.03(b)(i). This refusal, for example, has been applied to the mark HEEB for clothing and entertainment services, when the evidence supported the derogatory nature of HEEB in reference to the Jewish community. In re Heeb Media LLC, 89 USPQ2d 1071 (TTAB 2008). Is the term COTTON CANDY COMB OVER of a similar nature? Doubtful. (Note - the constitutionality of the disparagement bar under Section 2(a) was recently argued in front of the U.S. Supreme Court and a decision is due any day).

To establish that a mark may falsely suggest a connection with a person or an institution as prohibited by Section 2(a), it must be shown that:
  1. the mark is the same as, or a close approximation of, the name or identity previously used by another person or institution;
  2. the mark would be recognized as such, in that it points uniquely and unmistakably to that person or institution;
  3. the person or institution named by the mark is not connected with the activities performed by the applicant under the mark; and
  4. the fame or reputation of the person or institution is such that, when the mark is used with the applicant’s goods or services, a connection with the person or institution would be presumed.
TMEP 1203.03(c)(i). Again, the mark here is COTTON CANDY COMB OVER, not anything mentioning Trump. Is COTTON CANDY COMB OVER a "close approximation of, the name of identity previously used by another person" and "would be recognized as such, in that it points uniquely and unmistakably to that person or institution"?

You be the judge of the above. We'll find out what the examining attorney assigned to this application at the USPTO thinks when this application is assigned in approximately three months.

Monday, May 22, 2017

Company Behind RompHim Files Trademark Application for ROMPHER

By now you may have heard about the viral RompHim sensation - a romper designed specifically for men and possibly the hottest summer trend of 2017. The guys behind the newest fashion trend and their business entity, Aced Clothing, LLC, sought to raise $10,000 for their idea on Kickstarter but have greatly exceeded that, raising $365,563 so far.
Aced Clothing filed a federal trademark application for ROMPHIM on March 29, 2017 that covers "Headwear; Jackets; Pants; Rompers; Shorts; Tank tops; Wearable garments and clothing, namely, shirts; Jackets." As of the date of this post, it has not been assigned to an examining attorney at the U.S. Patent and Trademark Office for review.

A more recent trademark application by Aced Clothing, LLC, however, suggests the company might not be solely focused on men after all. On May 16th, it filed another federal trademark application for ROMPHER (get it?). Similar to the ROMPHIM application, this application also covers various clothing items, although the specific items vary slightly. The ROMPHER application covers "Bathing suits; Dresses; Hats; Pants; Rompers; Shirts; Shorts; Skirts; Tank tops."

Aced Clothing filed the ROMPHER, and ROMPHIM, applications on an intent to use basis, suggesting it is not yet using these trademarks in commerce but has a bona fide intention to do so in the near future. See TMEP 806.01(b); 15 USC 1051(b). This makes sense because, at least in the case of ROMPHER, it does not appear Aced Clothing is selling these goods yet. Before either of these applications will fully register, Aced Design will need to start selling or shipping the RompHim and RompHer goods in interstate commerce and submit sufficient proof of same to the USPTO. See TMEP 1103.

The ROMPHIM trademark application will probably be assigned to an examining attorney at the USPTO within the next month and the ROMPHER application sometime around mid-August (it typically takes around 3 months after an application is filed for it to be assigned to an attorney at the USPTO for review). When assigned, the examining attorney will review the applications and determine whether they should be approved for publication (one of the final phases in the registration process) or, if there is a problem, issue an Office action to which the company will need to respond accordingly.

Will RompHer catch on like RompHim? We can only hope.

Friday, May 19, 2017

Ubisoft Files New SPLINTER CELL Trademark Application Covering Multi-Player Computer Games, eSports Competitions

UbiSoft's Tom Clancy's Splinter Cell series has been around for years, boasting six installments of video games over the years, the last of which UbiSoft released in 2013. A recent federal trademark application for SPLINTER CELL filed by UbiSoft with the U.S. Patent and Trademark Office, however, suggests a new installment may be in the works.

UbiSoft filed the application on May 15th for a variety of computer and video game-related services in Class 41, including:
  • Entertainment services, namely, providing interactive multi-player computer games via the internet and electronic communication networks;
  • Entertainment services, namely, continuing television programs and interactive television programs featuring comedy, drama, live-action, and animation, broadcast over television, satellite, audio, and video media;
  • Entertainment services, in the nature of eSports competitions; and
  • Providing a web-based system and on-line portal for gamers to participate in on-line gaming, operation and coordination of game tournaments, leagues and tours for computer game playing purposes; rental and distribution of entertainment content of others, namely, video games, movies and television shows.
The application was filed on an intent to use basis, suggesting UbiSoft is not yet using the SPLINTER CELL trademark in conjunction with all the services listed in the application but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b).

This is the first video game-related SPLINTER CELL trademark application filed by UbiSoft since October 2016. That application covered services similar to those in this most recent one. UbiSoft does already own four federal trademark registrations for SPLINTER CELL going back to 2002, and registrations for SPLINTER CELL CONVICTION, SPLINTER CELL CHAOS THEORY, and SPLINTER CELL DOUBLE AGENT. Although these registrations cover video games, none cover services as expansive as those in the most recent applications, such as eSports competitions or television programs.

Monday, May 15, 2017

Commissioner of Baseball Files Four Applications to Register World Series Trophy as a Trademark

Major League Baseball's Commissioner's Trophy, given to the winner of the World Series, may be a federally registered trademark soon. On May 10th, the Office of the Commissioner of Baseball filed four federal trademark applications with the U.S. Patent and Trademark Office for the trophy. These appear to be the first federal trademark applications for the trophy filed by the Commissioner.

The applications describe the mark as "a design representing a three-dimensional object comprised of thirty flags mounted on poles and arranged in a circle on a round base. The interior of the base consists of a slightly raised dome." According to the application, this particular design was first used in commerce on July 7, 2000 (I don't know enough about baseball to know the significance of that date, if any).

The Commissioner filed each application in one class of goods and services (hence the four applications). The goods and services covered by these applications include:
As I've blogged about before, it is certainly possible to obtain a federal trademark registration for the way something looks. Generally, as long as the configuration sought to be protected is not functional, it can be registered and protected as a trademark. See TMEP 1202.02(a)(iii); 15 USC 1052(e)(5). How does one determine whether a product feature or design is functional? Generally four factors are considered:
  • the existence of a utility patent that discloses the utilitarian advantages of the design sought to be registered;
  • advertising by the applicant that touts the utilitarian advantages of the design;
  • facts pertaining to the availability of alternative designs; and
  • facts pertaining to whether the design results from a comparatively simple or inexpensive method of manufacture.
See TMEP 1202.02(a)(v);  In re Morton-Norwich Prods., Inc., 671 F.2d 1332, 1340-1341 (C.C.P.A. 1982).

The MLB is not the only professional sports league to seek a federal trademark registration for its championship trophy. The NFL has owned a federal registration for the Vince Lombardi Trophy since 1983. And in 2015, the National Hockey League obtained a federal registration for "a three-dimensional configuration of a trophy with a ridged circular base, that narrows into an open bowl shape with curved lines radiating upward from the base of the bowl" (aka the Stanley Cup).

Wednesday, May 10, 2017

Recent Trademark Application Suggests Megyn Kelly's New Sunday Night Show on NBC Might Have a Name

Back in January, longtime Fox News host Megyn Kelly left the network to join NBC News. Recently, it was announced that her new Sunday night show on NBC would premiere in June. And now, if a recent trademark application is any indication, that new show might have a [predictable] name.

On May 5th, NBCUniversal Media, LLC filed a federal trademark application for SUNDAY NIGHT WITH MEGYN KELLY. The application covers "Entertainment services, namely, an ongoing television series featuring politics, business, news and public affairs rendered through the media of television, cable, satellite, and broadband systems, via the internet, and portable and wireless communication devices" in Class 41.

NBC filed the application on an intent to use basis, which suggests the network is not currently using the trademark in commerce but has a bona fide intention to do so in the near future (which makes sense considering the show is not set to air until June). See 15 USC 1051(b). This is the first application related to Megyn Kelly filed by NBC.
Along with the application, Megyn Kelly submitted a declaration consenting to the use of this trademark and its registration with the U.S. Patent and Trademark Office (above). Such a written declaration is required when a trademark consists of or comprises a name (including nicknames), portrait, or signature of a living individual. See 15 USC 1052(c).

So is SUNDAY NIGHT WITH MEGYN KELLY the name of her new Sunday NBC show? The application doesn't guarantee NBC will go with this name, but the "bona fide" intention requirement of the Trademark Act does require that something more than just an idea be in the works for the mark. Stay tuned.

Wednesday, May 3, 2017

"Catch Me Outside" Girl Files Trademark Applications for CASH ME OUSSIDE

Update - May 10th

Dani B Holdings, LLC filed six more trademark applications after my original post below. Two CASH ME OUTSIDE trademark applications were filed for various entertainment services and apparel. Additionally, two applications for CASH ME OUSSIDE HOW BOW DAH and two applications for CASH ME OUTSIDE HOW BOW DAH were filed on May 2-3, also covering various entertainment services and apparel.

Original Post - May 3rd

You know her as the "Catch Me Outside" girl, but her real name is Danielle Bregoli and she (or, more accurately, a business entity that appears to be associated with her) recently filed two applications with the U.S. Patent and Trademark Office to register CASH ME OUSSIDE as a trademark.
On April 28th, a Florida company called Dani B Holdings, LLC filed the CASH ME OUSSIDE applications in multiple classes covering a wide variety of goods and services (some based on actual use in commerce and others on an intent to use), including:
Dani B Holdings, LLC is a Florida limited liability company organized in March 2017 with an address in Hollywood, Florida and lists Barbara Bregoli, Danielle's mother, as the manager

After uttering her infamous phrase on Dr. Phil in September 2016, 14-year-old Danielle has amassed millions of followers on social media (like Facebook, Instagram, and Twitter) and may be getting her own reality TV show.

These two applications appear to be the first applications associated with Danielle to be filed with the USPTO. Are applications for HOW BOW DAH next?

Tuesday, May 2, 2017

Is MTV Bringing Back TRL?

The popular MTV television series TRL (aka Total Request Live) from the late 1990's and 2000's might be making a comeback if recent trademark applications are any indication.
On April 27th, Viacom International, Inc., MTV's parent company, filed three trademark applications with the U.S. Patent and Trademark Office (USPTO) for:
Viacom filed each application in Class 41 covering the same services:
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; providing online information in the field of entertainment concerning television programs; entertainment services, namely, providing radio programs and podcasts in the fields of music and news; production and distribution of radio programs and podcasts and distribution of radio programs and podcasts for others
Each application was filed on an intent to use basis, which indicates Viacom is not currently using these marks in commerce but has a bona fide intention to do so in the near future (which makes sense considering the last episode aired in 2008). See TMEP 806.01(b); 15 USC 1051(b).

While Viacom filed multiple applications and had some registrations for TRL or TOTAL REQUEST LIVE in the late 1990's and early 2000's, all have since expired. Only one registration for TRL is still active. However, that registration, registered in August 2004 and renewed in 2014 for another ten year term, covers a variety of clothing items in Class 25, not entertainment services or television shows.

These are the first TRL-related applications filed by Viacom since 2003 and the first TRL-related applications covering a entertainment services in the form of a television program filed since 2001.

Does this mean TRL is making a comeback? Maybe. Section 1(b) of the Lanham Act, 15 USC 1051(b), only requires that the applicant have a bona fide intention to use the mark in commerce. A "bone fide intent" only requires that there be something in the works for the mark and the underlying goods/services (i.e., a business plan, contracts in place, etc.), but does not mandate that the applicant actually start using the mark. That being said, if Viacom wants the above applications to mature into a federal registration, it will need to start using the marks and submit sufficient proof of same to the USPTO. See TMEP 902.

So, something is probably in the works for TRL, although what exactly is not clear. My only request is that they bring back Carson Daly.

Monday, May 1, 2017

California Company Files Trademark Application for BLOODY MARY ON DRAFT

If brunch is your thing, you might be into this - on April 26th a company in California called In A Jar, LLC filed a federal trademark application for BLOODY MARY ON DRAFT. The application covers, of course, "alcoholic cocktail mixes" in Class 33.
Even better for brunchers, the application indicates that this trademark has been in use with the associated goods at least as early as March 1, 2017, indicating the underlying goods are already for sale and probably out there in the marketplace.

According to the company's website, the company (which appears to be doing business as "Preservation") will provide a bar with a kegerator that works with a bar's existing tap lines, as well as various Bloody Mary mixes that can be used with the system, so that a bar can pour Bloody Mary's just as they would pour beer (ed. - is this available for home use as well?).

Will this application face a Section 2(e)(1) refusal, which prohibits the registration of "merely descriptive" trademarks on the Principal Register? See TMEP 1209.01(b) ("A mark is considered merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services"). Maybe. We will find out in approximately three months when this application is assigned to a Examining Attorney at the U.S. Patent and Trademark Office.

So, would you try a Bloody Mary from a tap? I think I'd give it a shot.

Friday, April 28, 2017

Disney Files Applications to Register UNIT ZERO, 5 Other Potential Shows or Movies as Trademarks

Disney Enterprises, Inc. had a relatively busy day at the U.S. Patent and Trademark Office on April 24th, filing six different trademark applications for what appears to be titles of television shows and/or movies. The applications Disney filed are for:
Disney filed each application in Class 41 for "education and entertainment services," which doesn't provide a great deal of detail about how these marks will be used. Each application was filed on an intent to use basis, suggesting Disney is not yet using these marks in commerce but has a bona fide intention to do so in the near future. 15 USC 1051(b); TMEP 806.01(b)

Such filings do not obligate Disney to actually start using these marks (although it will need to start using them to actually get a registration), but the statute does require a "bona fide" intent to use the marks as a condition precedent to filing an intent to use application, which means something more than just an idea in one's head exists for the mark (i.e., a business plan has been created, contracts have been signed for the show, the show is in pre-production, etc.). For example, it appears ABC (Disney is the parent company of ABC) is currently casting for Unit Zero, which is set to be a action dramedy.

As I blogged about last month, Disney also recently filed five trademark applications for RALPH BREAKS THE INTERNET: WRECK- RALPH 2. It is not uncommon for entertainment companies to file trademark applications for potential show or movie names prior to their premiere (like Netflix did last October).

Friday, April 21, 2017

Viacom Files 8 Trademark Applications, Most Related to TV Shows

April 17th was a busy day for Viacom International, Inc. at the U.S. Patent and Trademark Office. On that day, the owner of the BET, Comedy Central, MTV, VH-1, and Nickelodeon brands (among others) filed eight federal trademark applications. Six of these applications appear to relate to television shows, although it is unclear on which network they would air.
Trademark image
The applications filed for television related services are:
Viacom filed each of the applications above on an intent to use basis in Class 41 for "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; providing online information in the field of entertainment concerning television programs."
In addition to the television-related applications, Viacom filed two applications for NICK, both in standard characters and in the design form seen above. Those applications cover "Video game software; computer programs and software; downloadable game software; downloadable mobile applications" in Class 9. According to the applications, Viacom has been offering the software/mobile applications under the NICK mark at least as early as February 1, 2013. The specimen submitted with the applications (above) seems to indicate these applications are related to the Nick Android app (and perhaps iPhone app).

As I blogged about in January, Viacom filed trademark applications for HAMSTER HOTEL and six other potential shows earlier this year. The HAMSTER HOTEL application was approved by the USPTO and will likely be published (the final stage in the registration process) soon.

Wednesday, April 19, 2017

CBS Studios Files Two Trademark Applications for NCIS: RED

Is CBS's NCIS series getting a new spinoff? Maybe, according to recent trademark applications filed with the U.S. Patent and Trademark Office.
On April 14th, CBS Studios, Inc. filed two applications to register NCIS:RED as a trademark. CBS filed one application in Class 9 and the other in Class 41 for the following goods and services:
CBS filed each application on an intent to use basis, suggesting the studio is not yet using this trademark in commerce but has a bona fide intention to do so in the near future. 15 USC 1051(b); TMEP 806.01(b).

So are these NCIS: RED applications related to a new NCIS spinoff? That's not exactly clear from the trademark applications, but some brief research revealed that CBS apparently ran a NCIS: Los Angeles: Red Team two part backdoor pilot in 2013. Whether these recent trademark applications are related to that pilot or something else, only time will tell. 

From a legal standpoint, however, if CBS wants to obtain a registration for the NCIS: RED mark based on these applications, it will need to start using the marks in commerce and submit an allegation of use evidencing the same to the USPTO. See TMEP 902. If the examination of these applications by the USPTO does not reveal any issues, that allegation of use will be due in approximately one year, although CBS may request up to five six-month extensions of time to file the allegation. See TMEP 1108 et seq. NCIS fans, pay attention to these applications.

On a related note, I previously blogged about the real NCIS filing a trademark application for its badge back in 2015. That application was recently approved by the USPTO after a couple Office actions and was recently published in the Official Gazette

Friday, April 7, 2017

AOL Files 8 Trademark Applications for OATH

On April 3rd, Verizon announced it planned to bring Yahoo and AOL together under a new brand name - Oath. The new name wasn't met with the greatest reception. Regardless, on that same day AOL, Inc. filed 8 federal trademark applications for OATH (in standard characters).
The applications span eight different classes of goods or services and AOL filed each application in a separate class (hence the eight applications). Those goods and services may give us an insight into Verizon's (ed. - maybe an assignment of this mark from AOL to Verizon at some point?) plan for the new brand. Some of the goods and services covered by the applications include:
AOL filed all these applications on an intent to use basis, suggesting the mark is not yet being used in the U.S. (which makes sense given the Summer 2017 rebranding date).

Interestingly, these are not the first trademark applications filed for the OATH name by AOL (although they are the first filed in the U.S.). AOL is claiming a priority date of January 13, 2017 under Section 44(d) of the Trademark Act based on trademark applications it filed in Mauritius on that date for these same marks. See TMEP 806.01(c); 15 USC 1126(d). As I've blogged about before, such foreign filings are not uncommon for major companies, usually when the company wants to keep the trademark information from public view (not even country maintains a publicly accessible database of trademarks like the U.S.). Mauritius is one of the countries that does not maintain a searchable trademark database.

Thursday, April 6, 2017

Texas Proprietor Files Trademark Application for DOGGIE WETSUITS, But is it Merely Descriptive? Generic?

Wetsuits aren't just for humans anymore, they're for the dogs. That is, according to Surf'n Sea Custom Wetsuits, a sole proprietorship in Texas. On April 2nd, that business filed a federal trademark application for the stylized wording DOGGIE WETSUITS seen below, covering "dog wetsuits, sports, clothing, wetsuits, water activity, dog products" in Class 18.
According to the application, Surf'n Sea Custom Wetsuits has been selling these dog wetsuits as least as early as October 11, 2015.
But is this mark merely descriptive, or possibly generic for the underlying goods? Merely descriptive marks describe an "ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services" and can only be registered on the Principal Register at the USPTO upon a showing of acquired distinctiveness in the marketplace. See TMEP 1209.01(b); 15 USC 1052(f). Generic words or phrases, on the other hand, "are terms the relevant purchasing public understands primarily as the common or class name for the goods or services" and can never be registered with the USPTO. See TMEP 1209.01(c).

Is the term "doggie wetsuits" a term the relevant public would understand as primarily the common or class name for dog wetsuits? Does that term merely describe a function, feature, purpose, or use of the underlying goods? We will find out in approximately three months when this application is assigned to an examining attorney at the USPTO.

Tuesday, April 4, 2017

Company Associated With Power Rangers Movie Files 5 Trademark Applications for ROBYN HOODIE Logo

SCG Characters, LLC (which appears to be a subsidiary of Saban Brands, LLC, a company started by Haim Saban, one of the producers of the 2017 Power Rangers movie and a well-known name in Hollywood) filed five federal trademark applications for the ROBYN HOODIE logo seen below on March 30th.
The scope of the goods and services covered by the five applications is massive, suggesting SCG might have been plans for this logo. Some of those goods and services include:
SCG Characters filed each application on an intent to use basis, suggesting it is not yet using this mark in commerce but has a bona fide intention to do so in the near future. TMEP 1101; 15 USC 1051(b).

According to my quick search, SCG Characters has owned a total of 130 trademark applications or registrations with the U.S. Patent and Trademark Office over the years, although only 17 of those are currently active. Some of the other applications recently filed by this entity include TREEHOUSE DETECTIVES, MY PET MONSTER, BIGFOOT LITTLEFOOT, AND POPPLES.

Monday, April 3, 2017

Quarterly Index (1/1/17 - 3/31/17)

Entertainment Trademark Filings:
Sports Trademark Filings:
Food and Drink Trademark Filings:
Other Unique Filings:

Friday, March 31, 2017

Disney Files 5 Trademark Applications for RALPH BREAKS THE INTERNET: WRECK-IT RALPH 2

A day before Disney announced the name of the Wreck-It Ralph sequel, it was busy filing federal trademark applications for the movie's title. On March 27th, Disney Enterprises, Inc. filed five federal trademark applications for RALPH BREAKS THE INTERNET: WRECK-IT RALPH 2 with the U.S. Patent and Trademark Office.
Those applications, all of which were filed on an intent to use basis (which makes sense given the release date is not until March 9, 2018), cover not only entertainment services but also a variety of merchandise Disney may have plans to offer in conjunction with the movie. Some of those goods and services include:
Disney filed similar applications for the original movie (see, for example, this application for WRECK-IT RALPH).

As I've blogged about before, it is not uncommon for an entertainment company to file trademark applications for the core entertainment services and also a variety of promotional merchandise related to the show or movie (although not every application actually makes it to registration). As we get closer to the film's release next year, I wouldn't be surprised to see Disney file additional applications for the title covering even more goods and services.

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.

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.

Monday, February 6, 2017

Outback Steakhouse Files Trademark Application for The Bloomin' Onion Man Costume

If you love Outback Steakhouse's Bloomin' Onion (which is a registered trademark itself, filed in 1989), you'll love this recent trademark application.

On January 31st, Outback Steakhouse of Florida, LLC filed a federal trademark application for the mark below, described as "a three-dimensional configuration of a costumed mascot character with human arms and legs and the body of fried onions on a plate wearing a hat in the form of a dipping sauce saucer. The wording 'Outback Steakhouse' appears thereon." In other words, the application does not cover words or a logo, but rather the costume itself (trademarks are not limited to words or logos).
Outback filed the application in Class 41 for "[e]ntertainment services in the nature of live appearances by a costumed mascot at college sporting events, promotions, charity events, special events and other performances."  According the application, Outback has been using this costume in commerce at least as early as September 21, 2013.
Earlier in January, Outback filed a different application for BLOOMIN' ONION MAN in standard characters (i.e., the words only) covering the same services in Class 41.

According to my quick search, Outback Steakhouse of Florida, LLC owns 92 live trademark applications or registrations at the U.S. Patent and Trademark Office.