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.

Friday, February 3, 2017

#SaltBae Files Trademark Application for SALTBAE Salt Sprinkling Design

Have you heard of #SaltBae? If not, here is everything you need to know. Even Leonardo DiCaprio was awed by #SaltBae in action recently. Memes of the Turkish chef Nusret Gökçe fantastically sprinkling salt on meat went viral in early January.

Now it appears Nusret Gökçe (or more appropriately, a related business entity) has filed a federal trademark application related to the popular meme. On January 30th, a Turkish-based entity by the name of D ET VE ET ÜRÜNLERI GIDA PAZARLAMA TICARET ANONIM SIRKETI filed a federal trademark application for the design seen below.

Yep, that's #SaltBae alright.

The Turkish entity filed the application in Class 25 for a variety of clothing items, including trousers, jackets, coats, T-shirts, shorts, and caps [ed. - but no vests?]. The application was also filed in Class 43 for services related to food, drink, and hotels, including restaurants, cafes, pubs, motels, boarding houses, day care centers, and pet and animal boarding services [ed. - what?].

How do we know this trademark application is associated with the real #SaltBae (aka Nusret Gökçe )? For one, this Turkish business directory seems to indicate that the business entity listed as the owner of this mark is associated with the restaurant #SaltBae co-owns, the Nusr-Et Steakhouse (and it links to Nusr-Et's website).

But perhaps most telling is that the business entity listed in this application also owns three other federal trademark registrations for stylized versions of NUSR·ET RESTAURANT, NUSR·ET STEAK HOUSE, and NUSR·ET, each filed in 2014 by the same attorney that filed the SALTBAE application. Pretty compelling evidence.

Thursday, February 2, 2017

11 Trademark Applications for ALTERNATIVE FACTS Filed In One Week

On January 22nd, President Trump's senior adviser Kellyanne Conway famously (or infamously) used the phrase "alternative facts" on NBC's Meet The Press to describe the crowds at the presidential inauguration. That same day, the first trademark application for ALTERNATIVE FACTS was filed with the U.S. Patent and Trademark Office. Over the next week, ten more applications would follow (as of today's date, only applications filed up to January 29th are visible in the USPTO's database).
The good sand services covered by the 11 applications are all across the board.  Some of those goods and services are:
As is often the case when a catchy phrase hits the news, multiple enterprising individuals hoping to capitalize on the term file federal trademark applications. Filing the applications, however, is only the beginning of the trademark registration process. Most of these applications, as with most applications for similar catchphrases, will probably not actually mature into a federal trademark registration.

For example, most of the 11 applications above were filed on an intent to use basis, which allows an applicant to file a trademark application before actually using it in commerce (which is typically required to establish rights in a mark), so long as the applicant has a bona fide intention to use the trademark in commerce in the near future. See TMEP 1101; 15 USC 1051(b). Before an intent to use application can register, the applicant is required to submit sufficient evidence to the USPTO showing they are actually using the trademark in commerce. TMEP 1103.

For the applicants of the ALTERNATIVE FACTS applications, this means they will need to actually sell the goods or provide the services listed in the respective applications and submit sufficient proof of the same to the USPTO before the USPTO will grant them a registration. Assuming, that is, that there are no other deficiencies in the applications that might prevent registration (i.e., inadequate description of the goods/services, deficient specimen, incorrect classification of goods/services, etc.). If an applicant does not meet all the requirements for registration, the application will be abandoned and the non-refundable filing fees are lost.

In sum, while it may be relatively easy to actually file a trademark application, that is only the beginning of a rather complicated legal process, and such a filing by no means guarantees a registration.

Tuesday, January 31, 2017

50 Cent Files Trademark Applications Related to TV Show

Curtis J. Jackson III, aka 50 Cent, filed two federal trademark applications on January 26th for the name of his 2003 rap album - GET RICH OR DIE TRYIN
These applications, however, are not related to music.  Instead, the artist filed one application 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."

50 Cent filed another application for GET RICH OR DIE TRYIN covering various clothing items [ed. - merchandise related to the show?].

Both applications were filed on an intent to use basis, suggesting that 50 Cent is not using these marks 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 50 Cent TV show called GET RICH OR DIE TRYIN? We may find out soon.

Friday, January 27, 2017

California Company Files Trademark Application Related To High Speed Transport in Tubes

Hyperloop technology is on its way, if a recent trademark application is any indication. On January 23rd, a company in California called Hyperloop Technologies, Inc. filed a federal trademark application for the logo seen below.

The interesting aspect of this application, however, is the identification of the services. Those services fall in Class 39 and read as follows: "[t]ransportation services, namely, high-speed transportation of passengers and goods in tubes; Consulting and advisory services in the field of transportation; Providing a website featuring information in the field of transportation; Providing information in the field of transportation[.]"

According to Hyperloop Technologies' website, "Hyperloop is a new way to move people and things at airline speeds for the price of a bus ticket."  The website also claims that a trip from Melbourne, Australia to Sydney in the loop would take approximately 55 minutes (an almost 11 hour trip in the car).

Interestingly, this is not the first trademark application filed by Hyperloop Technologies, Inc. Twenty two trademark applications are on record with the USPTO and 20 of those are still active (although none have registered).  Some of the other applications are for HYPERLOOP ONE, LOOPER, INFINITYLOOP, and HYPERLOOP IS REAL.

Hyperloop Technologies filed most of the applications related to the transportation of passengers in high speed tubes on an intent to use basis, which means they are required to start providing those transpiration services before these applications can mature into a federal trademark registration. TMEP 1109.03; 37 CFR 2.88(a)(2).  Hyperloop technology might not be as far off as it seems.

Tuesday, January 24, 2017

Ohio State Files Trademark Application for Black, White, and Red Stripe

Ohio State University added another application to its ever expanding federal trademark portfolio on January 19th.  On that date, the university filed a federal trademark application for the stripe seen below. The mark is described as "a stripe design containing distinct bands of the colors black, white, and red."
The application covers a variety of clothing items in Class 25, replica and collector football helmets in Class 28, and entertainment services related to sporting events, courses in sports and fitness instruction, and a website relating to sports in Class 41.
The university filed the application on an in-use basis, with dates of first use in commerce ranging from 1966 (sporting events) to 1993 (football helmets).

This is not the first time the Ohio State University filed trademark applications related to the school's colors.  In February 2016, I blogged about a trademark application for a jersey design the school filed and how it had claimed acquired distinctiveness in designs in the past to successfully register them as trademarks.

The particular application for the jersey I blogged about last year has since been abandoned, however. In that case, the Trademark Office issued an Office action in which it refused registration because "the applied-for color mark, consisting of one or more colors used on some or all of the surfaces of a product or product packaging, is not inherently descriptive" and thus not entitled to registration without a showing of acquired distinctiveness. OSU did not respond (it did, however, file another application for a similar jersey in March 2016, which did register after successfully showing acquired distinctiveness). It is possible OSU may face a similar Office action for the stripe above. We will find out in approximately three months when it is assigned to an Examining Attorney.

Monday, January 23, 2017

Viacom Files Trademark Applications for HAMSTER HOTEL and Six Other Potential TV Shows

Viacom, Inc. had a busy day at the U.S. Patent and Trademark Office on January 18th.  On that date, the entertainment company and owner of the MTV, VH-1, BET, Comedy Central, and Nickelodeon brands (among others), filed federal trademark applications for what may be several new TV shows.
The marks filed for the potential new shows are:
Viacom filed each of the above applications on an intent to use basis, suggesting these marks aren't actually being used by the company in commerce yet but there is some sort of plan to use each mark in the near future.  Some of the applications also covered a variety of merchandise related to the shows, such as clothing and toys.

It's anyone's guess which channels the above shows might appear (if they appear at all, and except for MTV VIDIOTS, of course) but if these trademark applications are any indication, some or all of Viacom's channels may be getting new shows sometime soon.

Friday, January 13, 2017

Conor McGregor Files Trademark Applications for Perfume and Cosmetics

And, to be fair, the MMA/UFC fighter (or, more correctly, his business entity) included a number of other goods and services in the applications, including health and fitness training. 

The federal trademark applications filed on January 9th by McGregor Sports and Entertainment (an Irish limited company) were for the fighter's actual name, CONOR MCGREGOR, and his nickname, THE NOTORIOUS.
The two applications cover the same goods and services across a range of classes.  Some of those goods and services include:
  • aftershave; toiletries; shaving oils; shaving gels; shaving foam; perfume; cosmetics (Class 3);
  • clothing; footwear; headgear (Class 25);
  • gymnasium services; provision of health club services; health and fitness training; education; provision of training; entertainment; sporting and cultural activities; gymnastic instruction (Class 41)
  • restaurant and cafe services; provision of food and drink; takeaway food services; hotel services; temporary accommodation (Class 43); and
  • barber shops; hairdressing services; healthcare services; physiotherapy; beauty salons; medical clinic services (Class 44).
The fighter filed the applications on an intent to use and 44(e) basis, meaning he does have a trademark registration in a foreign country, although these appear to be the first filings in the United States.

One thing notably missing from the applications is Conor McGregor's written consent to register his name as a trademark.  That consent is required when a mark identifies a particular living individual.  See TMEP 813.  He may also need to consent to the registration of THE NOTORIOUS, as the written consent requirement applies to "a pseudonym, stage name, or nickname, if there is evidence that the name identifies a specific living individual who is publically connected with the goods or services, is generally known, or is well known in the field relating to the relevant goods or services."  TMEP 813.

Wednesday, January 4, 2017

Is HANDSOCKS Merely Descriptive or Suggestive of Mittens?

Here's a fun one. On December 30th, an entity named Handsocks, LLC filed a federal trademark application for the design seen below, the literal element of which is HANDSOCKS. The applicant filed the application in Class 25 for "mittens", listing a first use date of December 3, 2016.
A very clever mark, but is it merely descriptive?  Section 2(e)(1) of the Trademark Act prohibits the registration on the Principal Register of any mark that is merely descriptive of the goods or services to which it relates (without a showing of secondary meaning, that is). "A mark is considered merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services."  TMEP 1209.01(b). For example, BED & BREAKFAST REGISTRY has been held to be merely descriptive of lodging reservation services. In re Bed & Breakfast Registry, 229 USPQ 818 (Fed. Cir. 1986). In addition, APPLE PIE has been held to be merely descriptive of potpourri (which I'm assuming smelled like apple pie). In re Gyulay, 3 USPQ2d 1009 (Fed. Cir. 1987).

On the other hand, suggestive marks are legally strong and can be registered on the Principal Register without any proof of secondary meaning. Where merely descriptive marks immediately convey something about the underlying goods or services, suggestive marks require "imagination, thought, or perception to reach a conclusion as to the nature of the underlying goods or services." TMEP 1209.01(a). Additionally, the Trademark Trial and Appeal Board has noted that "somewhat incongruous word combinations whose import would not be grasped without some measure of imagination and 'mental pause'" is indicative of a suggestive mark. In re Shutts, 217 USPQ 363, 364-5 (TTAB 1983).

So what do you think?  Does HANDSOCKS immediately convey something about mittens? Or is it an incongruous word combination that requires some imagination and mental pause to determine the underlying goods? We'll find out what the Examining Attorney thinks when this is assigned to one in approximately three months.