Thursday, September 14, 2017

Two Hurricane Irma-Related Trademark Applications Filed on Day Storm Hit Florida

As is the case when nearly any newsworthy event occurs (like with Covfefe), people across the country attempt to "capitalize" on a name or phrase by filing intent-to-use trademark applications with the U.S. Patent and Trademark Office ("USPTO"). Hurricane Irma, it appears, is no different.
On September 10th, the day Hurricane Irma made landfall in Florida, two Hurricane Irma-related trademark applications were filed - one for HURRICANE IRMA and the other for I SURVIVED HURRICANE IRMA.

An individual in Columbus, Mississippi filed the application for HURRICANE IRMA on an intent-to-use basis, which suggest she was not using the name as a trademark at the time of filing (i.e., was not selling goods or rendering services under that name) but has a bona fide intention to so do in the near future. TMEP 806.01(b); 15 USC 1051(b). That application covers a host of non-beer related alcohol products, including:
  • Alcoholic beverages made of fruit; 
  • Alcoholic beverages except beers;
  • Alcoholic cocktail mixes;
  • Alcoholic cocktails in the form of frozen pops; and
  • Alcoholic coffee-based beverage.
Before this application can register, the applicant will need to actually start selling the goods listed in the application under the HURRICANE IRMA name and submit sufficient proof of the same to the USPTO. TMEP 1103; 15 USC 1051(d). If she cannot do this before her extensions run out, the application will go dead.

The applicant who filed the I SURVIVED HURRICANE IRMA application, an individual from Levittown, New York, also filed that application on an intent-to-use basis. That application covers:
  • Tee-shirts; Tee shirts; Apparel for dancers, namely, tee shirts, sweatshirts, pants, leggings, shorts and jackets (Class 25); and 
  • Tee-shirt embroidering services; Imprinting messages on tee-shirts (Class 40). 
As with the HURRICANE IRMA application, this applicant will need to start actually using this phrase in conjunction with the listed goods and services before he can obtain a registration. However, simply plastering this phrase on various clothing items is not typically enough to demonstrate trademark use and therefore obtain a registration. TMEP 1202.03(f)(i) ("Slogans or phrases used on items such as t-shirts and sweatshirts, jewelry, and ceramic plates have been refused registration as ornamentation that purchasers will perceive as conveying a message rather than indicating the source of the goods.").

Although it might not be an issue with these two applications given the differences in the underlying goods and services, often when a slew of applications are filed for the same mark, many of the underlying goods or services are related (i.e., there might be several more Hurricane Irma-related applications covering clothing filed in the future). In that case, later filed applications are often refused registration under Section 2(d) of the Trademark Act.

Under Section 2(d), an application that is likely to cause confusion with a previously filed mark will be refused registration. TMEP 1207.01; 15 USC 1052(d). But what happens when two applications are executed and filed on the same day, such as the applications above, which were both executed and filed on September 10th? Which is the previously filed application? In this case, because the execution date and filing date are the same for both applications, the application with the lowest serial number will be deemed the earlier filed application. TMEP 1208.01(b). In this case, that is the HURRICANE IRMA application (Ser. No. 87/602,370), not I SURVIVED HURRICANE IRMA (Ser. No. 87/602,412).

Only two Hurricane Irma-related trademark applications have been filed so far, but considering the most recent trademark applications appearing in the USPTO's database are only from September 10th (the database is usually 4-5 days behind), I would not be surprised to see more applications in the near future.

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