Tuesday, November 21, 2017

Alexander Wang Files Application to Register Fanny Pack Design as a Trademark

On November 16th, AW Licensing, LLC (which appears to be Alexander Wang's trademark holding company and owns several ALEXANDER WANG trademark registrations) filed a federal trademark application with the U.S. Patent and Trademark Office for the fanny pack design seen below (ed. - are fanny packs back in?). AW Licensing filed the application in Class 25 for "fanny packs." According to the application, Alexander Wang has been selling these fanny packs since December 15, 2016.
The application describes the trademark as "a five-zipper and chain design on a fanny pack." Note that the dotted lines help show where the trademark appears on the product but are not actually considered part of the mark. TMEP 1202.02(c)(i)(B). In other words, this application does not cover the entire fanny pack, just the placement of the chain and zippers. The specimen of use submitted with the application, showing how this fanny pack appears to consumers, is below.
Technically, this application is for "trade dress," which is generally defined as the "total image and overall appearance of a product" and "may include features such as size, shape, color or color combinations, texture, [and] graphics." TMEP 1202.02Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 764 n.1 (1992). As I've blogged about before, trade dress can be registered if it is (1) non-functional and (2) inherently distinctive or has acquired distinctiveness in the marketplace.

Generally, trade dress is functional if it is "essential to the use or purpose of the article or if it affects the cost or quality of the article." TMEP 1202.02(a) Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 165 (1995) (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 850, n.10 (1982)). In considering whether trade dress is functional, the following 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.
TMEP 1202.02(a)(v).

If the trade dress is not functional, it must be inherently distinctive or have acquired distinctiveness in the marketplace. TMEP 1202.02(b). In a 2000 Supreme Court case, the Supreme Court stated that trade dress related to product designs (such as this fanny pack), as opposed to trade dress for product packaging, is never inherently distinctive. Wal-Mart Stores, Inc. v Samara Bros., 529 U.S. 205, 215 (2000). Proving acquired distinctiveness, at least in the product design context, requires a great deal of evidence that shows the product design identifies not only the goods, but the source of those goods. See TMEP 1212  et seq. In other words, Alexander Wang will need to convince the Trademark Office that when consumers see the "five-zipper and chain design" on a fanny pack, they recognize that fanny pack as an Alexander Wang fanny pack.

What do you think? Is the five-zipper and chain design essential to the use or purpose of the fanny pack? Does it affect cost or quality? Does Alexander Wang tout the utilitarian advantages of five zippers? Are there other alternatives for designing a fanny pack? If the design is not functional, do you recognize Alexander Wang as the designer when you see this fanny pack because of the zipper and chain design?

We'll see what the Trademark Office thinks in approximately three months when this application is assigned to an examining attorney.

Monday, November 20, 2017

Trademark Application for Design of Cryptocurrency "Boomcoin" Filed

Led by the surge of BitCoin, cryptocurrency seems to be all over the news lately. It's no surprise, then, that those hoping to cash in on the trend (no pun intended) are also filing cryptocurrency-related trademark applications.

One of the latest trademark applications, filed with the U.S. Patent and Trademark Office on November 15th by a "Mr. Kofi" in Malibu, California, is for the design of the "Boomcoin" seen below.
The application describes the trademark as consisting "of the wording BOOMCOIN in rose gold and gold. A depiction of two coins and a microphone sits on top of the B in the middle of each coin. One coin consist of two colors, rose gold and white in the middle. The other coin is solid gold."

Mr. Kofi filed this application in Class 36 for the following services:
We provide financial services, namely, providing a decentralized and open source crypto-currency on a global computer network utilizing a blockchain. We provide financial advice; Financial affairs and monetary affairs, namely, financial information, management and analysis services; Financial analyses; Financial consultancy; Financial consultation; Financial credit scoring services; Financial forecasting; Financial information and evaluations; Financial information processing; Financial trust administration; Financial trust operations; Financial valuations; Banking and financing services; Cash and foreign exchange transactions; Conducting financial feasibility studies; Currency exchange services; Currency trading; Electronic funds transfer by telecommunications; Electronic transfer of funds; Electronic transfer of money; Electronic transfers of money; Exchanging money; Financial management via the Internet; Financial research and information services; Foreign exchange information services; Issue of tokens of value; Monetary exchange operations; Money exchange services; On-line real-time currency trading; Pawnbrokerage; Providing financial information; Provision of financial information; Surety services; Trustee services.
Note that the USPTO may require the applicant to clean up this description of services, particularly those at the beginning. TMEP 1402.01 states "[t]he identification of goods and/or services must be specific, definite, clear, accurate, and concise." Extraneous wording like "we provide" should be omitted.

According to the application, Mr. Kofi has been providing the listed services under this mark at least as early as January 1, 2013. However, the specimen submitted with the application, seen below, does not appear to show the mark as it is used in conjunction with the advertising or rendering of the listed services.
Acceptable specimens of use for services marks are those "(1) showing the mark used or displayed as a service mark in the sale of the services, which includes use in the course of rendering or performing the services, or (2) showing the mark used or displayed in advertising the services, which encompasses marketing and promotional materials." TMEP 1301.04. Those specimens may include "newspaper and magazine advertisements, brochures, billboards, handbills, direct-mail leaflets, menus (for restaurants), press releases that are publicly available (e.g., on the applicant’s website), and the like." Id.

According to my quick search, approximately 378 cryptocurrency-related applications have been filed with the USPTO and about 315 are currently active.

Tuesday, November 7, 2017

Kanye West Files Four Trademark Applications for YEEZY SOUND...Is It a New Record Label, Streaming Music Service, or Something Else?

Whatever Kanye West's plans are for YEEZY SOUND, they appear to be big (at least according to four recent trademark applications filed for the name). On November 2nd, Mascotte Holdings, Inc. (a holding company for Kayne's trademarks), filed four applications to register YEEZY SOUND [standard characters] as a federal trademark.
Kayne's holding company filed each application in a different class of goods or services (hence the four applications) and the goods and services covered by these application are extremely broad. Some of the standouts include:

All these applications were filed on an intent-to-use basis, suggesting Kayne is not using these trademarks in commerce yet, but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). Before these applications can mature into registrations, Kayne must start using the mark with the listed goods and services and submit sufficient proof of same to the U.S. Patent and Trademark Office. See TMEP 1103.

According to my quick search, these are the first applications for YEEZY SOUND filed by Mascotte Holdings, Inc. and are four of the eight applications filed by the holding company with the USPTO this year. Earlier this year, Mascotte Holdings filed applications for YEEZY (various clothing items), WAVE RUNNER (flip flops, sandals, shoes), and two applications for CALABASAS CLOTHING (various clothing items and bags).

So are the YEEZY SOUND applications related to a new streaming music services, record label, retail stores, or something else? Pay attention to these applications to find out.