Monday, July 24, 2017

Are JALAPENO MAC BITES Merely Descriptive of Macaroni and Cheese Bite Sized Nuggets Filed with Jalapenos?

A delicious but possibly descriptive trademark application was filed on July 19th by a Florida company called Mac and Cheese Holdings, LLC (ed. - sounds like a great place to work). On that date, the company filed a federal trademark application for JALAPENO MAC BITES covering "macaroni and cheese bite sized nuggets filled with jalapenos and cream cheese and other cheeses and coated in breadcrumbs and baked" in Class 30.
The company filed the application on an intent to use basis, suggesting it is not selling these bites yet but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). Delicious, but is it merely descriptive of the underlying goods?

Under Section 2(e)(1) of the Lanham Act, marks that merely describe the underlying goods or services are not registerable on the Principal Register (where you want to be) of the U.S. Patent and Trademark Office without a showing of acquired distinctiveness (which is very difficult to show with an intent to use application).

According to 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." Even if a mark does not describe every purpose, feature, function, etc., it can still be merely descriptive if it describes one significant function, attribute, or property of the goods or services. Id.

What do you think? Does JALAPENO MAC BITES merely describe an ingredient, quality, characteristic, function, feature, purpose, or use of macaroni and cheese bite sized nuggets filled with jalapenos and cream cheese and other cheeses and coated in breadcrumbs and baked? Or is it only suggestive of the goods in that it requires "imagination, thought, or perception to reach a conclusion as to the nature of those goods..." (and therefore can be registered on the Principal Register without a showing of acquired distinctiveness)? See TMEP 1209.01(a).

Keep an eye on this application and see what the Examining Attorney thinks in about three months when the application is examined.

Friday, July 21, 2017

Warner Bros. Files Applications to Register Hufflepuff, Gryffindor Emblems as Trademarks

It looks like you'll have to go through Warner Bros. Entertainment, Inc. if you want to use the Hufflepuff or Gryfinndor emblems as trademarks. On July 17, the company filed applications to register the emblems seen below as trademarks with the U.S. Patent and Trademark Office.

The applications for both emblems cover the same variety of merchandise, including the goods listed below:
Warner Bros. filed all these applications on an intent to use basis, suggesting (but not necessarily meaning) they are not using these marks in conjunction with the listed goods yet but have a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b)

I'm not a Harry Potter guy, but aren't there more than two houses? According to my quick search, these are the only emblems filed by Warner Bros. (in 2017 at least) related to Harry Potter, but maybe the other emblems are coming soon.

Determining whether Warner Bros. owns a registration takes some work, however, considering the company owns 956 active trademark applications or registrations with the USPTO, including several standard character mark applications for the house names (and that doesn't include unregistered, common law trademarks). Earlier this year, Warner Bros. filed several applications for BUTTERBEER covering a variety of goods ranging from clothing items to dessert puddings to watches.

Tuesday, July 18, 2017

Virgin Enterprises Files Trademark Applications Covering "Space Travel Passenger Transportation Services"

Trademark applications covering space travel aren't that common, but they are starting to pop up more and more. For example, last summer I blogged about Paul Allen's Vulcan Space. The most recent applications, however, are from Richard Branson's Virgin Enterprises.

On July 13th, Virgin Enterprises filed two applications with the U.S. Patent and Trademark Office to register the Virgin Orbit logo (one seen below and the other the same thing but against a black background) as a trademark.

The applications cover several goods and services related to space travel, air transport, and satellites, including:
  • Launching of spacecraft, namely satellites and rockets, into orbit for others (Class 39);
  • Space travel passenger transportation services (Class 39);
  • Luggage check in for space travel (Class 39);
  • Commercial space lines, namely, rockets, spacecraft (Class 12);
  • Satellites for scientific purposes to be sent into orbit (Class 9)
  • Satellite transmission of signals (Class 38)
The applications are based on similar trademark applications Virgin Enterprises filed in the United Kingdom on May 12, 2017. They appear to be related to Virgin Orbit (obviously), the newest member of the Virgin family.

Interestingly, these are not the first space travel-related trademark applications filed by Virgin Enterprises. Earlier this year, the company filed an application for VIRGIN ORBIT in standard characters covering the same goods and services listed in the logo applications. Additionally, the company has owned a trademark registration for the Virgin Galactic logo seen below, covering "Travel agency services, namely, making reservations and bookings for transportation, space travel agency services; namely, booking of transportation into space" since November 2008.
Virgin filed several other trademark applications for variations of the Virgin Galactic logo back in 2014 and 2015 as well. None of those applications have registered yet, probably because Virgin Galactic does not appear to be using those variations of the logo in commerce and such use is required before the applications can mature into a registration given the intent to use filing basis. See TMEP 902.

According to my very quick search, Virgin and Vulcan appear to be the only companies with active trademark applications or registrations covering the transportation of passengers into space, save for one registration covering a spacecraft logo owned by an Excalibur Almaz Limited corporation on the Isle of Man.

Friday, July 14, 2017

Is RED CUP PONG Merely Descriptive of Beer Pong Tables?

College students might be in the best position to answer this question. On July 10th, a company in Virginia named Blue Ridge Product Solutions, LLC filed applications to register RED CUP PONG (in standard characters), and the stylized logo seen below, with the U.S. Patent and Trademark Office.
Both applications cover "Game tables; inflatable mattress swimming floats for recreational use, namely, beer pong floats; games, namely, table top games, equipment sold as a unit for playing drinking games, parlor games, singing games played with cards and game components" in Class 28.
According to the applications and specimens submitted with the same (see above), Blue Ridge Products Solutions, LLC is in the business of selling party games and accessories and has been using the "Red Cup" marks at least as early as December 1, 2010.

But are the marks merely descriptive of the underlying goods? A mark that merely describes the goods in connection with which it is being used cannot be registered on the USPTO's Principal Register without a showing of acquired distinctiveness. TMEP 1209; 15 USC 1052(e)(1). A mark is merely descriptive " if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." TMEP 1209.01(b). However, if a mark is deemed merely descriptive, it can be registered upon proof of "acquired distinctiveness," which means the mark has become distinctive as applied to the applicant's goods in commerce (i.e., consumers associate the mark with the applicant's goods, rather than only as a descriptive term). TMEP 1212; 15 USC 1052(f).

So does RED CUP PONG or RED CUP describe a feature, purpose, or use of drinking games and beer pong floats? Or do the terms "require imagination, thought, or perception to reach a conclusion as to the nature of those goods..." in which case the mark would be suggestive and registerable on the Principal Register without a showing of acquired distinctiveness. TMEP 1209.01(a).

We'll find out what the examining attorney assigned to this application thinks in about three months. The applicant might hope for an examiner without too many "fun" college experiences...

Tuesday, July 11, 2017

JAY Z's Company Files 15 Applications to Register JAYBO as a Trademark

A couple weeks ago it was Beyonce filing applications for the names of her and JAY Z's twins, now it's JAY Z's turn. On July 6th, S. Carter Enterprises, LLC (a company associated with JAY Z) filed fifteen applications to register JAYBO as a federal trademark with the U.S. Patent and Trademark Office.
According to my quick research, Jaybo is an animated character in the music video for "The Story of O.J.," a song released as part of JAY Z's new 4:44 album. The full video is available on YouTube. In the video, JAY Z highlights a long history of racist cartoons from major animation studios, including Disney and Warner Bros.

If these recent trademark applications are any indication, JAY Z has plans to take the JAYBO message even further. S. Carter Enterprises, LLC filed the JAYBO applications in fifteen different classes of goods and services (hence the fifteen applications), resulting in a vast range of goods and services being covered. Some of the goods and services covered by the JAYBO applications include:
Each application was filed on an intent to use basis, suggesting S. Carter Enterprises is not using JAYBO in commerce with these goods and services yet but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). It also means the company must actually start using JAYBO with the listed goods and services before the applications will mature into trademark registrations. TMEP 902; 15 USC 1051(c)-(d).

If you're a JAY Z fan, keep an eye out for JAYBO merchandise, potentially coming soon.

Monday, July 3, 2017

Quarterly Index (4/1/17 - 6/30/17)

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