Tuesday, July 17, 2018

Owner of Popular Instagram Account boopmynose Files Application to Register BOOP MY NOSE as a Trademark

Do you love animals? Do you love booping them on the nose (both physically and virtually)? If so, this trademark application is for you.

On July 12, Bobiliah LLC, the Florida limited liability company apparently behind www.boopmynose.com and the popular boopmynose Instagram account, filed an application to register BOOP MY NOSE as a trademark with the U.S. Patent and Trademark Office.
A post shared by Boop My Nose ™ (@boopmynose) on
Bobiliah LLC filed in the application in Class 41 for "Providing a website featuring animal photographs for entertainment purposes; providing non-downloadable online videos featuring animals for entertainment purposes; providing animal photographs through social media for entertainment purposes." According to the application, Bobiliah has been using this phrase as a trademark since August 31, 2015.

According to the company's website, Boob My Nose is "the original booping community" and has approximately 600k followers on social media (the most popular account being its Instagram account, which boasts 368k followers). Fans can submit a picture of their pet's face that prominently features the nose (mostly dogs and cats, but there are horses, cows, pigs, and a variety of other animals) and other's can "boop" the nose by double tapping the photographs on Instagram to "like" the photo. A recent post from the boopmynose Instagram account is seen above.

This isn't the first federal trademark application filed by Bobiliah LLC. The company owns five existing trademark registrations - four for the words LEASH YOURSELF and one for a related logo, all covering services related to an online database for finding pets available for adoption.

This isn't the first time I've blogged about a trademark application related to a popular Instagram account. Two years ago, I blogged about an application for #MRSTEALYOURGRANDMA filed by the viral (at the time) Mr. Steal Your Grandma. That trademark substantially registered. Last year, I blogged about the popular Tinkerbelle The Dog and a trademark application for that name. That application is on its way to registration as well.

If you're interested in booping some noses, you know where to go.

Wednesday, July 11, 2018

Is SAKE ICE CREAM Merely Descriptive of, or Generic for, Providing Sake Ice Cream and Ice Cream Parlors?

As a matter of practice, when filing a federal trademark application, I generally try to avoid using the term I'm trying to get registered in the identification of goods/services listed in the application. Such use generally signals that the designation the applicant seeks to register is merely descriptive of the underlying goods/services or, worse, generic for them.

Merely descriptive designations cannot function as trademarks until (and if) they acquire distinctiveness and the U.S. Patent and Trademark Office ("USPTO") will refuse to register merely descriptive designations on the Principal Register under Section 2(e)(1) of the Trademark Act. Generic terms can never function as trademarks and the USPTO will absolutely refuse to register such terms as trademarks.
Take a recent application for SAKE ICE CREAM filed by a New York LLC, for example. This application, filed on July 6th, covers
Catering services; Ice cream parlors; Providing of food and beverages namely sake ice cream for consumption on and off the premises; Provision of food and drink namely sake ice cream in restaurants and liquor stores and exhibition spaces; Services for providing food and drink namely sake ice cream
Is SAKE ICE CREAM merely descriptive of these services? Generic?

The USPTO will deem a mark merely descriptive "if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." TMEP 1209.01(b). Additionally, "the mark need not describe all the goods and services identified, as long as it merely describes one of them." Id. For example, the mark APPLE PIE was deemed merely descriptive of potpourri that smelled like apple pie. In re Gyulay, 820 F.2d 1216 (Fed. Cir. 1987).

The USPTO will deem a designation generic "if its primary significance to the relevant public is the class or category of goods or services on or in connection with which it is used." TMEP 1209.01(c)(i). The USPTO applies a two part test: (1) what is the genus of goods or services at issue? and (2) does the relevant public understand the designation primarily to refer to that genus of goods or services? For example, the term SCREENWIPE for premoistened antistatic cloths for cleaning computer and television screens was determined to be generic for those goods. In re Gould Paper Corp., 834 F.2d 1017, 1018 (Fed. Cir. 1987).

Is SAKE ICE CREAM merely descriptive of the services of providing sake ice cream? Or is it generic? If the mark sought to be registered was ICE CREAM without "SAKE" in front, would it change your opinion?

The determination is significant - generic terms can never function as trademarks and never be registered, but merely descriptive terms may become trademarks upon a showing of acquired distinctiveness and the USPTO will register such terms (if in use) on the Supplemental Register until (and if) the applicant proves acquires distinctiveness. For more on acquired distinctiveness, see TMEP 1212 et seq.

We'll find out what the examining attorney assigned to this application thinks in approximately three months.

Thursday, June 28, 2018

Applications Filed to Register I REALLY DO CARE Phrases as Trademarks After Melania Trump Wears Controversial Jacket

On her way to visit migrant families in Texas last week, First Lady Melania Trump sported a Zara jacket with the phrase "I really don't care do u?" emblazoned on the back. The choice of apparel ignited a controversy regarding the administration's attitude towards the migrant families. It also prompted many celebrities to respond by printing various "I really do care" phrases on the back of their own jackets and led to at least two federal trademark applications for similar phrases (although they don't appear to be filed by celebrities or major apparel companies).
On June 22, a joint venture in California filed an application to register the words I REALLY DO CARE, DO U? as a trademark for various athletic apparel (see specimen submitted with the application above). Additionally, on June 23, a corporation in Florida filed an application to register I REALLY DO CARE. DON'T U? as a trademark for various apparel (see specimen submitted with application below).
Unfortunately for these applicants, their slogans will likely be refused registration on the basis of ornamentation. Merely decorative subject matter, which does not identify and distinguish an applicant's goods, does not function as a trademark and therefore cannot be registered as one. See TMEP 1202.03. Slogans or phrases used on items such as t-shirts and sweatshirts are routinely refused registration because "purchasers will perceive [them] as conveying a message rather than indicating the source of the goods." TMEP 1202.03(f)(i).

When you see the phrases on the shirts above, do you see a message being conveyed? Or does it tell you the source of the shirt? If you see a message being conveyed, rather than the source of the shirt (i.e., Nike, adidas, Hanes), the use is probably ornamental, not trademark use. We'll see what the examining attorneys assigned to review these applications at the USPTO think in about three months.

Wednesday, June 27, 2018

Anheuser-Busch Files Applications to Register FROSE-A-RITA, BERRY-KIWI-RITA, and Several Other "-RITA's" as Trademarks

The month of June was a busy time for Anheuser-Busch and RITA-themed trademark applications. The beverage giant filed six applications to register various -RITA marks this June (ed. - appropriate summer trademarks, no?) and appears to be expanding this line of products, if these trademark applications are any indication. The application filed this month are for:
Anheuser-Busch filed each application in Class 32 for "flavored beer." The applications were filed on an intent-to-use basis, suggesting Anheuser-Busch is not currently using these trademarks with flavored beer but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1052(b). Before these applications can register, Anheuser-Busch must start using these trademarks in conjunction with the sale of flavored beer and submit sufficient proof of same to the U.S. Patent and Trademark Office, like it did for an application it filed in 2016 for BUD LIGHT LIME COCO-NUT-RITA SPLASH (see image to the right for the evidence filed).

In December 2016, I blogged about Anheuser-Busch's application for GRAPE-A-RITA, which has since registered. Back in August and September 2016, the beverage company filed trademark applications for BUD LIGHT LIME COCO-NUT-RITA SPLASH, BUD LIGHT LIME PINE-APPLE-RITA SPLASH, BUD LIGHT LIME PEACH-A-RITA, and BUD LIGHT LIME ORANGE-A-RITA. All those applications, except BUD LIGHT LIME COCO-NUT-RITA, were abandoned because Anheuser-Busch did not submit proof it was using those trademarks by the deadline to do so. However, Anheuser-Busch refiled similar marks without "Bud Light Lime" in front and obtained registrations for those (like PEACH-A-RITA and ORANGE-A-RITA).

According to my quick search, Anheuser-Busch currently owns 463 active trademark applications or registrations with the U.S. Patent and Trademark Office. And yes, a registration for DILLY DILLY covering "beer" is one of them.

Wednesday, June 6, 2018

Bacardi Files Application to Register Grey Goose Bottle Design as a Trademark

Recognize the source of the bottle below? If so, it might be functioning as a trademark, which is exactly what Bacardi is banking on given its recent federal trademark application for this bottle design.
On June 1st, Bacardi & Company Limited filed an application with the U.S. Patent and Trademark Office to register the design above as a trademark. Bacardi filed the application in Class 33 for "alcoholic beverages except beers" and described the mark as
a bottle with a narrow neck which has a blue and white neck label with white geese imprinted on a blue band on the bottom of the neck label. Centered on the front of the bottle is a silhouette of a large goose and several smaller geese behind and in front of the larger goose. These geese appear to be flying over a mountainous lake design which is generally blue with some white for shading purposes. There is a flock of white flying geese above the lake. Below the mark is a rectangle comprising a blue portion on the left, a red portion on the right, and a white portion in the middle.
Can product designs or packaging function as trademarks? Yes, if they are (1) non-functional and (2) distinctive. TMEP 1202.02. In other words, the product design or packaging must not be essential to the use or purpose of the article or affect the cost or quality of it (i.e., non-functional) and, by its intrinsic nature, serve to identify a particular source (i.e., it is distinctive). See TMEP 1202.02(a)(iii)(A) and TMEP 1202.02(b)(i).

Bacardi has had success registering bottle designs as trademarks in the past. For example, it owns a registration for the Grey Goose Le Melon bottle design and the Dewar's White Label bottle design, among others.

In this case, however, Bacardi may need to clarify some things before it can obtain a registration. For example, is the Grey Goose design Bacardi seeks to register for a two-dimensional depiction of the bottle or for a three-dimensional bottle design? The USPTO asked Bacardi the same thing in an application Bacardi filed for a Bacardi rum bottle back in December 2017. Specifically, in that case the USPTO asked Bacardi to indicate whether the application was for a three-dimensional configuration of the goods or packaging or a specific design feature of the goods or packaging. Because the mark description for the Grey Goose bottle does not specify whether it is for a three-dimensional configuration, Bacardi may need to indicate as much again.

According to my quick search, Bacardi & Company owns 197 active trademark applications or registrations with the USPTO, several of which are for bottle designs and/or bottle configurations (like this one for the Grey Goose VX bottle).

Tuesday, May 29, 2018

Kid Rock Files Applications to Register KID ROCK'S REDNECK RYE, KID ROCK'S REDNECK WHISKEY as Trademarks

Kid Rock might not actually be running for Senate (despite filing an application to register KID ROCK FOR SENATE as a trademark last year), but he may actually be expanding his line of alcoholic beverages, if recent trademark applications are any indication. On May 24th, Robert J. Ritchie (aka Kid Rock) filed applications to register KID ROCK'S REDNECK RYE and KID ROCK'S REDNECK WHISKEY as trademarks with the U.S. Patent and Trademark Office.
Not surprisingly, each application covers "distilled spirits" in Class 33. The rocker filed each application on an intent-to-use basis, suggesting he is not currently using these trademarks to sell distilled spirits 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, Kid Rock must actually start using these designations as trademarks and submit sufficient proof of same to the USPTO.

Before that can happen, however, Kid Rock might need to deal with a couple issues. One is that the USPTO is likely to require Robert Ritchie to submit his written consent to the use and registration of a trademark containing KID ROCK. Such consent is required because Section 2(c) of the Trademark Act prohibits the registration of any name, portrait, or signature that identifies a particular living individual without that individual's written consent. 15 USC 1052(c). That prohibition applies not only to full names, but also to "first names, surnames, shortened names, pseudonyms, stage names, titles, or nicknames, if there is evidence that the name identifies a specific living individual who is publicly connected with the business in which the mark is used, or who is so well known that such a connection would be assumed." TMEP 1206.01. The USPTO initially refused to register the KID ROCK FOR SENATE application, for example, in part because this written consent was not submitted (and still hasn't been).

Another potential issue is a rejection of this application based on a likelihood of confusion with existing KID ROCK trademark registrations. This is not an issue if similar trademarks are owned by the same party, but in Kid Rock's case, Top Dog Records, Inc. owns some KID ROCK trademark applications and registrations (including a pending application for KID ROCK'S MADE IN DETROIT covering "restaurant and bar services"). Because the whiskey and rye applications are in Robert J. Ritchie's name personally, and other KID ROCK applications/registrations are in a record company's name, the trademarks are owned by two different owners (in the USPTO's eyes), which requires (under Section 2(d) of the Trademark Act) the USPTO to refuse to register the latter filed applications in light of the existing applications or registrations, if the latter filed applications are deemed to be confusingly similar to the existing applications and registrations. For example, the KID ROCK FOR SENATE application (which covered apparel and was in Robert J. Ritchie's name) was initially refused registration because of a perceived likelihood of confusion with an existing registration for KID ROCK, owned by Top Dog Records, Inc., that also covered apparel.

These are not the first alcohol-related trademark applications filed by Robert J. Ritchie. The rocker currently owns registrations for AMERICAN BADASS BEER COMPANY (and a logo), BADASS BEER, BADASS, and an eagle design, all covering "beer."

Wednesday, May 16, 2018

Epic Games Files Applications to Register Every Location in Fortnite as a Trademark

Your favorite spot to drop in Fortnite? It's now the subject of a federal trademark application.
On Friday, May 11th, Epic Games, Inc. filed applications to register every location in Fortnite (all 21 of them) as a trademark with the U.S. Patent and Trademark Office. Links to each application are below:
Epic Games filed each application (with the exception of LUCKY LANDING, which was not filed in Class 41, maybe by mistake) in the same three classes for the same goods and services:
  • Class 9 - Video game software
  • Class 25 -  Hats; Headwear; Hooded pullovers; Hooded sweatshirts; T-shirts
  • Class 41 - Entertainment services, namely, providing on-line computer games; Entertainment services, namely, providing online video games
Each application was filed on an intent-to-use basis, meaning Epic Games will need to submit evidence that they are using these names as trademarks for the listed goods and services before a registration can be issued. TMEP 806.01(b); 15 USC 1051(b). For example, Epic Games submitted the screenshot above with its application for the name FORTNITE covering "Entertainment services, namely, providing on-line computer games," which registered earlier this year.

A federal trademark registration comes with a number of benefits, one of the main ones being that it gives the owner the presumption of the exclusive right to use the trademark nationwide (as opposed to within a limited geographic area, which is typically the case with an unregistered trademark). It can also streamline the process of filing similar trademark applications in foreign countries and gives the owner the right to use the little (r) symbol (unregistered trademarks can only use the small (tm)).

According to my quick search, these are the first trademark applications for the locations in Fortnite filed by Epic Games. The gaming company also owns pending applications for VICTORY ROYALE and SLURP JUICE, filed back in February, covering the same goods and services.

Tuesday, May 8, 2018

Is Jimmy Buffett's Margaritaville Getting into the Marijuana Business? Recent Trademark Applications for IT'S 4:20 SOMEWHERE and CORAL REEFER Say Maybe

It's 5:00 somewhere? Not anymore. 4:20 is the new 5:00, at least according to recent trademark applications filed by the entity operating the Jimmy Buffett's Margaritaville restaurants and resorts.
On May 3rd, Margaritaville Enterprises, LLC, founded by Jimmy Buffett, filed twelve federal trademark applications with the USPTO covering what appears to be a variety of marijuana-focused goods and services. The applications are for two phrases - IT'S 4:20 SOMEWHERE and CORAL REEFER. Margaritaville Enterprises filed each phrase in six different classes of goods and services each, rather than listing the six classes in a single application (hence the twelve applications). Applicants often do this to prevent an issue in one class from holding up all the other classes (which is what would happen if all the classes were listed in a single application).

The goods and services covered by the IT'S 4:20 SOMEWHERE and CORAL REEFER applications are, for the most part, the same and include:
Margaritaville Enterprises filed each application on an intent-to-use basis, suggesting it is not currently using these phrases as trademarks for the listed goods/services 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, the phrases must actually be used as trademarks for the listed goods/services and sufficient evidence of that use must be submitted to the USPTO. TMEP 902.

Notice that Margaritaville Enterprises did not list "marijuana" as one of the goods in its applications. That is because the sale of marijuana is illegal at the federal level. The USPTO will refuse to register any trademark for the sale of marijuana because that sale violates federal law, and a trademark must be in lawful use in commerce for the USPTO to register it. I blogged about this issue before here.

So is Jimmy Buffett's Margaritaville moving into the marijuana business? Will you be able to get marijuana as easy as margaritas at the Margaritaville restaurants and resorts in the near future? You be the judge (and pay attention to these applications to find out).

According to my quick search, Margaritaville Enterprises, LLC owns 432 active trademark applications or registrations with the USPTO, including several registrations for MARGARITAVILLE, like this one from 1995.

Monday, May 7, 2018

Applications Filed to Register FISH-AS-A-SERVICE, FAAS as Trademarks for Underwater Drone Rental

You've heard of software as a service (SaaS), but fish-as-a-service (FaaS)? Probably not. That name, and the acronym, are the subjects of two recent federal trademark applications.
On May 2nd, a California partnership called Aquaai Corporation filed the FISH-AS-A-SERVICE and FAAS trademark applications with the U.S. Patent and Trademark Office. Both applications cover the "rental of underwater drones" in Class 41 and indicate the trademarks have been in use since April 18, 2018.

According to Aquaai's website and the specimen submitted with the trademark applications (seen above), the company rents biometric fishlike drones to collect data underwater. The company's mission is to "save the seas by providing intelligence under the surface."

What happens to the trademark applications next? In about three months, the applications will be assigned in an examining attorney at the USPTO, who will review the application to make sure it meets all the statutory requirements for registration. See TMEP 704.01; 37 CFR 2.61(a). If there are any issues, the examining attorney will notify the applicant, who will be given six months to respond. TMEP 705 et seq. For example, a refusal to register the mark will be made is a confusingly similar trademark is already on file with the USPTO. TMEP 1207; 15 USC 1052(d).

If the applications make it through the examination process, or any issues raised during the examination process are resolved, the application will be published for thirty days in the USPTO's Official Gazette. TMEP 1502; 15 USC 1062. During that time period, any third party that believes it would be damaged by the registration of the trademark is entitled to oppose its registration. If an opposition is filed, it triggers a lawsuit-like proceeding in front of the Trademark Trial and Appeal Board. TMEP 1503.01 et seq. If no opposition is filed, the applications should mature into registrations about eleven weeks after the initial publication date. In total, a trademark application without any issues in the examination phase takes about nine to twelve months to register.

Wednesday, April 25, 2018

Netflix Studios Files Three Trademark Applications for Potential New Shows

As is often the case when potential new shows are in the works, Netflix Studios, LLC filed three applications to registered the titles of potential new shows as trademarks with the U.S. Patent and Trademark Office this month. The applications filed in April are:
According to the trademark applications, both Another Life and Black Moon will be "dramatic television series" whereas Turn Up Charlie will be an "ongoing comedic drama television series." Netflix Studios, LLC filed all these applications on an intent-to-use basis, suggesting it is not currently using these titles as trademarks in commerce yet but has a bona fide intention to do so in the near future (which makes sense given these shows aren't available for streaming yet). 15 USC 1051(b); TMEP 806.01(b).

In total, Netflix Studios, LLC has filed 11 federal trademark applications in 2018, including the three listed above. The other eight applications were for:
  • PRINCE OF PEORIA (filed January 30th for, in part, an "ongoing comedic drama television series")
  • CHAMBERS (filed January 9th for, in part, an "ongoing dramatic television series")
  • MR. IGLESIAS (filed March 27th for, in part, an "ongoing comedic drama television series")
  • THE FIX (filed February 28th for, in part, an "ongoing unscripted comedic drama television series")
  • THE INNOCENTS (filed February 14th for, in part, an "ongoing dramatic television series")
  • SUPER MONSTERS (filed February 9th, not for a television series but rather for a variety of merchandise, such as clothing, bags, a variety of toys, and video games)
  • EVERYTHING SUCKS! (filed February 7th, also not for a television series but a variety of merchandise)
  • THE CHRISTMAS CHRONICLES (filed February 6th for a "series of motion pictures" along with a variety of merchandise)
Why no applications for the name of a movie? Because the USPTO will not register the title, or a portion of a title, of a single creative work as a trademark unless it has been used on a series of creative works (think Harry Potter). TMEP 1202.08. Single creative works are generally works "in which the content does not change, whether that work is printed, recorded, or electronic form." TMEP 1202.08(a). Without getting too into the weeds legally, the refusal to register titles to single creative works essentially stems from the fact that the USPTO does not consider the title of a single creative work to identify the source of the work, and therefore it does not function as a trademark (trademarks, by definition, are source indicators). This refusal is sometimes the subject of debate and often differs from the treatment of titles to single creative works by the federal courts, which, in certain circumstances, do tend to protect such titles from confusingly similar uses under Section 43(a) of the Trademark Act, 15 USC 1125(a).

According to my quick search, Netflix Studios, LLC owns 76 active trademark applications or registrations with the USPTO, all of which appear to be related to shows on Netflix (like registrations for THE OA, MINDHUNTER, and STRANGER THINGS).

Monday, April 9, 2018

Asahd Khaled's Company Spends $17,325 to File Applications to Register His Name as a Trademark

Like any proud dad, musical phenom DJ Khaled loves showing off his son, Asahd Tuck Khaled, who is about a year and a half old. Asahd is already so famous that his Instagram account has over 1.8 million followers. And recently, like most celebrity parents, his parents organizing the filing of applications with the U.S. Patent and Trademark Office ("USPTO") to register his name, and variants thereof, as trademarks.
On April 4th, ATK Entertainment, Inc. (ed. - short for "Asahd Tuck Khaled"?) filed three federal trademarks applications with the USPTO - one for ASAHD, one for ASAHD KHALED, and one for ASAHD TUCK KHALED. All three applications cover the same, incredibly broad range of goods and services spanning 21 classes. Some of the goods and services covered by these applications include:
  • Fragrances; Perfumes; Cosmetics (Class 3);
  • Baby food; Nutritional supplements (Class 5);
  • DVDs, CDs, and audio and visual sound recordings featuring musical performances (Class 9);
  • Baby teething rings; Pacifiers (Class 10);
  • Baby carriages, baby strollers (Class 12);
  • Jewelry (Class 14);
  • Books in the field of music, motion pictures, and musical performers (Class 16);
  • Handbags (Class 18);
  • A variety of clothing (Class 25);
  • Basketballs, baseballs, footballs (Class 28);
  • Breakfast cereals (Class 30);
  • Online retail store services featuring music, musical recordings, motion pictures, clothing and clothing accessories (Class 35);
  • Entertainment services by a musical artist and producer, namely, musical composition for others and production of musical sound recordings; production of television programs; entertainment services in the nature of ongoing television programs in the field of children's entertainment, fashion, music, dance and sports (Class 41)
Because the USPTO charges filing fees per class, ATK Entertainment paid $5,775 in filing fees per application, or $17,325 total for all three (not including any fees paid to the law firm that filed the applications - Edell, Shapiro & Finnan, LLC in Gaithersburg, Maryland). Those fees top the approximately $12,000 Beyonce paid last June to file applications for the names of her twins.

If you aren't convinced these applications are actually associated with the real Asahd Khaled, below is a written consent signed by Asahd's mother and DJ Khaled's wife - Nicole Tuck - consenting to the use and registration of Asahd's name as a trademark. A written consent was filed for each of the three applications.

The written consent above is required because Section 2(c) of the Trademark Act prohibits the registration of a trademark consisting of or comprising a name, portrait, or signature identifying a particular living individual, except with that individual's (or in this case, their guardian's) written consent. Section 2(c) doesn't just apply to full names, but to nicknames, shortened names, pseudonyms, and stage names as well. TMEP 1206.01.

Before Asahd's trademarks can register, ATK Entertainment will need to start using his name as a trademark in conjunction with those goods and services listed in the applications and submit sufficient proof of same to the Trademark Office. In other words, don't be surprised if you see ASAHD cologne, or ASAHD jewelry, in the near future.

According to my quick search, these are the first federal trademark applications filed by ATK Entertainment, Inc.

Wednesday, April 4, 2018

Vice President Mike Pence's Daughter (and Wife) File Applications to Register Their Rabbit, Marlon Bundo, as a Trademark

Do you know BOTUS? Aka Marlon Bundo, the Bunny of the United States, and the pet of Vice President Mike Pence's daughter? He's now the subject of two federal trademark applications.

On March 29, Charlotte Pence, the Vice President's daughter, and Karen Pence, the Vice President's wife, jointly filed with the U.S. Patent and Trademark Office two trademark applications related to the bunny - one for the drawing seen to the right and another for the words MARLON BUNDO. Both applications cover the same broad range of goods, including:
  • Books in the field of subject matter of interest to children (Class 16);
  • Downloadable electronic books in the field of subject matter of interest to children (Class 9);
  • Downloadable motion pictures and television shows about subject matter of interest to children (Class 9);
  • Prayer books (Class 16);
  • Pet feeding and drinking bowls (Class 21);
  • Educational toys for teaching and testing knowledge relating to the politics, political process, and political history of the United States (Class 28); and
  • Toy animals (Class 28).
The Vice President's wife and daughter filed both application on an intent to use basis, suggesting they are not using these designations as trademarks in conjunction with all the goods listed in the applications, but have a bona fide intention to do so in the near future. 15 USC 1051(b); TMEP 806.01(b). Before these applications can mature into registrations, Charlotte and Karen must start actually using the drawing above and the name MARLON BUNDO in commerce as trademarks and submit sufficient proof of same to the USPTO. TMEP 1103.

The trademark applications follow the release of Charlotte and Karen Pence's new children's book featuring the bunny, entitled "Marlon Bundo's Day in the Life of the Vice President." John Oliver, host of HBO's "Last Week Tonight", parodied the book with his own version shortly after its release.

According to my quick search, these are the first federal trademark applications filed by Charlotte or Karen Pence. To see Marlon for yourself, check out his Instagram page, which now boast over 32,000 followers.

Friday, March 23, 2018

Game Livestreamer Files Applications to Register His Face as a Trademark

Brandon M. Dennis (aka Oxhorn) is a musician, author, and game livestreamer and his face (or a drawing of it), at least according to a recent trademark application, is his trademark.
On March 19th, Oxhorn, LLC  filed five federal trademark applications, including two covering the drawing above. Brand Dennis is listed as the governing person of the LLC, according to the Washington Secretary of State's website. The applications for the drawing describe the trademark as "the image of a man's face who is wearing a hat and a beard and that is smiling while holding a cigar between his lips."

The applications cover a variety of services in Class 38 and Class 41 (hence two applications) related to video games and short live action and animated shows over the internet, including:
  • Streaming of audio and visual materials over the internet;
  • Entertainment, namely, live performances featuring video game playing with player commentary and narration; 
  • Arranging, organizing and performing online shows featuring video game playing with player commentary and narration; and
  • Entertainment services, namely, providing on-going webisodes featuring short live action and animated shows via a global computer network
According to the applications, Oxhorn has been using this drawing as his trademark since September 27, 2017. The specimens submitted with the applications, seen below, show Oxhorn is using this drawing as his YouTube avatar (click to make bigger). He is also using it as his Twitter profile picture and his Facebook profile picture.

Can a drawing of someone's face serve as a trademark? Sure, if it is used as a source indicator. No Limit, LLC (owner of the Newman's Own trademarks), for example, owns several trademark registrations for an artistic rendering of Paul Newman's face. But is using a drawing as a YouTube, Twitter, or Facebook profile picture (assuming that's the only way Oxhorn is using it) sufficient to demonstrate use of the drawing as a trademark?

TMEP 1301.02(b) may provide some guidance "a name or design of a character does not function as a service mark, unless it identifies and distinguishes services in addition to identifying the character.  If the name or design is used only to identify the character, it is not registrable as a service mark." Does Oxhorn's use of the drawing above identify and distinguish services in addition to identifying Oxhorn? We'll find out what the examining attorney assigned to this application at the U.S. Patent and Trademark Office thinks in approximately three months.

Note also that, because these applications are for a portrait of Oxhorn, and Section 2(c) of the Trademark Act prohibits the registration of a mark consisting of a living individual's portrait without that person's written consent, Brandon Dennis will likely need to provide his written consent before this mark can register. See also TMEP 1206.01.

On the same day Oxhorn, LLC filed the two applications for the drawing of Oxhorn's face, it also filed three other applications to register OXHORN as a trademark. Those applications cover services in Class 38 and Class 41 similar to those listed in the applications for the drawing. The third OXHORN application covers a variety of clothing items in Class 25.

According to my quick search, these are the first federal trademark applications filed by Oxhorn, LLC.

Wednesday, March 14, 2018

GOLDEN OREO, NILLA, and NUTTER BUTTER Cereals? Maybe, According to Recent Trademark Applications

Your favorite cookies, crackers, and biscuits might soon be breakfast cereals, if recent trademark applications filed by a subsidiary of Mondelez International, Inc. are any indication.
On March 8th, International Great Brands, LLC, a subsidiary of Mondelez International,  Inc. (formerly Kraft Foods) filed applications to registered GOLDEN OREO and NILLA as trademarks with the U.S. Patent and Trademark Office. These trademark applications don't cover cookies, however. They cover "breakfast cereals" in Class 30.

International Great Brands filed both applications on an intent to use basis, suggesting it is not currently selling breakfast cereals under these marks but has a bona fide intention to do so in the near future. 15 USC 1051(b); TMEP 806.01(b).

These applications are only two in a line of "breakfast cereals" applications filed by International Great Brands, LLC since last year - all of which are related to popular cookies, crackers, or biscuits. In May 2017, the food giant filed a trademark application for OREO O's and HONEY MAID. In December 2017, it filed trademark applications for the peanut logo below, NUTTER BUTTER, and CHIPS AHOY!. All those applications also covered "breakfast cereals."
According to my quick search, International Great Brands, LLC owns 317 active trademark registrations with the USPTO, including registrations for a variety of popular snack foods, like OREO, SWEDISH FISH, DENTYNE, RITZ, TEDDY GRAHAMS, NEWTONS, HALLS, and TRISCUIT.

Monday, February 26, 2018

Baker Mayfield's Agent Files Application to Register BAKER MAYFIELD as Trademark for Variety of Apparel & Entertainment Services (Including a Religious Television Series)

Oklahoma's Baker Mayfield, the 2017 Heisman Trophy winner, is one of the top prospects going into this year's NFL draft. And it he appears he is seeking to capitalize on the popularity of his name (and protect it) by filing an application to register it as a trademark with the U.S. Patent and Trademark Office.
On February 24th, Baker Mayfield's agency - Waterhouse Hayes, LLC - filed an application to register BAKER MAYFIELD as a trademark for a variety of apparel in Class 25 and a variety of entertainment services in Class 41. Jacob Perler of Waterhouse Hayes, LLC signed the application.

Some of the goods and services covered by this application include:
  • Men's, women's and children's clothing associated with a professional sports athlete or entertainment celebrity, namely, sports caps and hats, bandanas, sports pants, sports shirts, swimsuits, fitted shirts...;
  • Football, Basketball, and any Sports coaching;
  • Television entertainment, namely, an ongoing television series featuring content in the field of sports and religion;
  • Electronic and video games;
  • Entertainment services, namely, personal appearances by a celebrity and athlete; and
  • Charitable services, namely, providing sporting goods and camps to underprivileged children
Baker's agency filed this application on an intent-to-use basis, indicating the athlete is not using his name as a trademark in conjunction with all these goods and services yet, but has a bona fide intention to do so in the near future. 15 U.S.C. 1051(b); TMEP 806.01(b). Before this application can register, he'll need to actually start using his name as a trademark in conjunction with these goods or services and submit sufficient proof of same to the Trademark Office. TMEP 1103.

In addition to possibly clarifying some of the listed goods and services (which must be concise and cannot be indefinite), the Trademark Office will require Baker Mayfield to give his written consent to the registration of his name as a trademark. Section 2(c) of the Trademark Act prohibits the registration of a trademark that compromises the name or signature of a living individual without that individual's written consent. TMEP 1206 et seq. That consent was not submitted with the application.

According to my quick search, this is the first trademark application for BAKER MAYFIELD filed with the U.S. Patent and Trademark Office. Additionally, it appears to be the first federal trademark application filed by Waterhouse Hayes, LLC.

Friday, February 16, 2018

Ralph Lauren Files Application to Register RUFF LAUREN as a Trademark for Dog Apparel

Are you a Ralph Lauren fan who loves dogs? Does your dog prefer designer clothing? If so, this potential dog apparel line from Ralph Lauren might be for you.
On February 12th, PRL USA Holdings, Inc. (a holding company that owns many of Ralph Lauren's trademark applications/registrations), filed a federal trademark application for RUFF LAUREN with the U.S. Patent and Trademark Office. The application covers the following goods in Class 18:
Dog apparel; dog collars and dog collar accessories namely, bows and charms; dog leashes; dog parkas; dog shoes; dog carrying bags; pet accessories, namely, canvas, vinyl and leather pouches for holding disposable bags to place pet waste.
Ralph Lauren filed this application on an intent-to-use basis, suggesting it is not currently selling the goods listed in the application under the RUFF LAUREN mark but has a bona (ed. - not bone) fide intention to do so in the near future. 15 U.S.C. 1051(b); TMEP 1101. Before this application can mature into a registration, Ralph Lauren must actually start using this mark in conjunction with the sale of the listed goods and submit sufficient proof of same to the USPTO. TMEP 1103.

It appears Ralph Lauren filed this exact same application back in August 2014, also on a intent-to-use basis. Ralph Lauren filed five six-month extensions of time to show the proper use of this trademark for the purposes of the 2014 application, which is the maximum number allowed. The final deadline for the 2014 application is February 24, 2018. If Ralph Lauren doesn't submit sufficient evidence showing use of RUFF LAUREN by that date, the 2014 application will go abandoned, which is probably why it filed a new application for the exact same mark covering the exact same goods. The owner of an intent-to-use application can request up to three years of additional time, in six month increments, to show use of its mark after the application goes through the examination process (which itself takes several months) and receives a Notice of Allowance. 15 U.S.C. 1051(d)TMEP 1108.01.

According to my quick search, PRL USA Holdings, Inc. owns 327 active applications or registrations with the USPTO.

Thursday, February 8, 2018

First Application to Register CHICAGOWEST as a Trademark Filed, But Not By Who You Think

I've been expecting trademark applications for CHICAGO WEST to follow the birth of Kim Kardashian and Kanye West's daughter last month (after all, Beyonce spent about $12,000 on filing fees to file trademark applications for her twin's names last year), but it appears the first CHICAGOWEST trademark application isn't related to the celebrity couple.
Instead, the first CHICAGOWEST trademark application, which was filed by ChicagoWest, LLC on February 4th, covers "hot dog sandwiches; popcorn; sandwiches" and appears to be related to a food truck (the website actually pokes fun at the situation, thanks Kim and Kanye for naming their daughter after their food truck, and announces the release of a new menu item called BabyWest). According to the trademark application, ChicagoWest, LLC has been using CHICAGOWEST as a trademark since September 15, 2016 (long before the birth of Kim and Kanye's daughter).

Will there be beef (ha!) between ChicagoWest, LLC and Kim/Kanye? It depends. As an initial matter, Kim and Kanye would need to use CHICAGO WEST as a trademark to assert trademark rights in the name. Generally, this means they are selling goods or providing services under the CHICAGO WEST name, rather than merely using it as the name of their daughter.

Further, goods and services offered under a trademark must be related to those offered under another similar trademark for infringement to arise (or for the Trademark Office to refuse to register a later filed application under Section 2(d) of the Trademark Act). If Kim/Kanye do not use the CHICAGO WEST name as a trademark with any goods/services related to sandwiches, hot dogs, and popcorn, it would be difficult to assert infringement of ChicagoWest, LLC's mark (and Kim/Kanye could likely obtain a federal trademark registration for CHICAGO WEST for different goods/services).

Finally, ChicagoWest, LLC apparently started using CHICAGOWEST as a trademark in September 2016, well before the birth of Chicago West. Because the first to use a trademark is generally the senior user, and therefore has priority (at least in conjunction with the goods/services it offers), Kim/Kanye might have difficulty using and registering CHICAGO WEST as a trademark in conjunction with foods (and maybe restaurants). This would also make it difficult for Kim/Kanye to go after ChicagoWest, LLC for using or registering CHICAGOWEST as a trademark for sandwiches, hot dogs, and popcorn.

In sum, it seems unlikely that a fight will cook up between this food truck and Kim/Kanye (at least in the trademark context), but the actions of third parties are impossible to predict. Note that this is a trademark blog, so I won't go into detail about other laws that might be applicable, such as the right of publicity.

Monday, January 29, 2018

Vince McMahon's Alpha Entertainment Files Trademark Application for Possible XFL Logo

Last week, Vince McMahon officially announced that he is bringing back the XFL in 2020 (although there was speculation of the same last month and I previously blogged about some XFL trademark applications filed in December).

Behind Vince McMahon during his livestreamed announcement was, what many speculated to be, the professional football league's new logo. It appears that logo might be around to stay, as Alpha Entertainment, LLC (Vince McMahon's company and owner of the XFL applications filed last month) recently filed an application to register that logo as a trademark with the U.S. Patent and Trademark Office.
The application is for the logo seen above and was filed on January 24th (the day before the press conference officially announcing the league). Much like the trademark applications for XFL filed last month, this application covers a broad range of goods and services (which appear to be substantially similar to those covered by last month's applications). Some of the covered goods and services include:
  • Entertainment services in the nature of professional football games and exhibitions (Class 41).
  • Downloadable software in the nature of mobile applications for displaying information relating to football exhibitions, football schedules, media guides, audio and visual recordings relating to football (Class 9);
  • Jewelry, watches, clocks, earrings, pins, bracelets, necklaces, charms, rings (Class 14);
  • Posters, calendars, pictorial prints, series of books relating to football, magazines relating to football, stickers, bumper stickers, printed tickets to sports games and events, souvenir programs for sports events (Class 16);
  • A variety of clothing items, including shirts, sweatshirts, shorts, sweaters, and hats (Class 25); and
  • Toys and sporting goods (Class 28).
Alpha Entertainment filed this application on an intent to use basis, suggesting it is not currently using this mark in commerce but has a bona fide intention to do so in the near future (which makes sense, considering the league won't premier until 2020). Before this mark can be registered, Alpha Entertainment must actually start using it in commerce and submit sufficient proof of same to the Trademark Office.

This application for the XFL logo, and the five applications for the letters XFL filed last month, are the only XFL-related federal trademark applications filed by Alpha Entertainment, LLC so far. 

However, before all the XFL applications, Alpha Entertainment filed two duplicate trademark applications for URFL in September 2017 on an intent to use basis. Those applications cover goods and services nearly identical to those covered by the XFL applications. Perhaps URFL was another name Vince McMahon was considering for the XFL? Something else?

Friday, January 26, 2018

Meryl Streep Files First-Ever Application to Register MERYL STREEP as a Trademark

On January 22nd, Mary Louise "Meryl" Streep filed what appears to be her first ever federal trademark application and the first ever trademark application for MERYL STREEP (in the United States, at least).
The trademark application covers "Entertainment services, namely, live, televised, and movie appearances by a professional actress and entertainer; Personal appearances; Speaking engagements; Autograph signings; Providing a website featuring content in the field of motion pictures" in Class 41 and lists a first use date of 1975 (which corresponds with the earliest piece listed in her filmography on IMDB.com - Everybody Rides the Carousel (1975)). The application was filed on Ms. Streeps behalf by Keats Gatien, LLP in Beverly Hills.

Somewhat surprising, this appears to be the first ever trademark application filed for MERYL STREEP in the United States and the only trademark application or registration owned by Mary Louise Streep. As I've blogged about before, celebrities, athletes, and other public figures often seek to register their names as trademarks with the USPTO (like Chrissy Teigen, Conor McGregor, and Jay Leno).

Notably missing from the MERYL STREEP trademark application is Mary Louise Streep's written consent authorizing the registration of her name as a trademark. Section 2(c) of the Trademark Act prohibits the registration of a living individual's name, signature, or portrait without that individual's written consent. This applies to the registration of a living individual's nickname as well. TMEP 1206.01. Before this application can register, that written consent will need to be provided to the USPTO.

Assuming the written consent hiccup is quickly resolved, and the rest of the application passes the USPTO's examination process, Meryl Streep may have a federal trademark registration for her name by the end of 2018.

Friday, January 19, 2018

Minnesota Vikings File Trademark Applications for MINNESOTA MIRACLE, MINNEAPOLIS MIRACLE Day After Divisional Playoff Win

The Minnesota Vikings are wasting no time in taking steps to protect the terms coined for their crazy walk-off win in the divisional round of the NFL playoffs last Sunday.

On January 15th, the day after the miraculous win, Minnesota Vikings Football, LLC filed four federal trademark applications with the U.S. Patent and Trademark Office - one for MINNESOTA MIRACLE and three for MINNEAPOLIS MIRACLE. The applications cover a variety of goods and services.
The application for MINNESOTA MIRACLE covers a broad range of goods and services spanning across ten different classes, including football helmets, jewelry, cups/mugs, toys and sporting goods, television broadcasting services, education and entertainment services in the nature of professional football games and exhibitions, arena services, and more. One of the MINNEAPOLIS MIRACLE covers identical goods and services. The Vikings filed both these applications on an intent to use basis, suggesting they are not currently using the mark in conjunction with all these goods and services but have a bona fide intention to do so in the near future. 15 USC 1051(b); TMEP 806.01(b).
Interestingly, despite filing these applications within a day of the Vikings' win, the Vikings filed the other two MINNEAPOLIS MIRACLE applications on a 1(a) basis, indicating they were already selling/transporting the listed goods and advertising and rendering the listed services in interstate commerce before filing the applications. One of those applications covers t-shirts and various entertainment services related to professional football games while the other covers various broadcasting services.

In any event, the Vikings didn't waste any time in seeking to enhance their legal rights related to these terms. According to the electronic time stamps, these four applications were filed between 3pm and 11:30pm on January 15th. The team must have gotten on the phone with their legal counsel pretty quickly after the win to get these filed.

According to my quick search, these are the first trademark applications for MINNESOTA MIRACLE or MINNEAPOLIS MIRACLE filed by the Vikings, although the team is currently listed as the owner of 118 other filings with the USPTO (the vast majority of which are pending applications that have not registered yet).

Wednesday, January 10, 2018

Anheuser-Busch Files Trademark Applications for Multiple Variations of DRINKWEISER

A public awareness campaign related to the responsible consumption of alcohol is in the works over at Anhesuer-Busch, and the name of the campaign will be DRINKWEISER (or some variation), if recent trademark applications are any indication.
On January 5th, Anheuser-Busch, LLC filed applications to register DRINKWEISER, DRINKWISER, DRINK WEISER, and DRINK WISER as trademarks with the U.S. Patent and Trademark Office. Each application covers the same services in Class 35 - "Promoting public awareness of the responsible consumption of alcohol."

Anheuser-Busch filed each of these applications on an intent to use basis, suggesting it is not currently using DRINKWEISER or any of the variations in commerce in conjunction with the listed services yet but has a bona fide intention to do so in the near future. 15 USC 1051(b); TMEP 806.01(b). Before these applications can mature into registrations, Anheuser-Busch must start using the mark with the listed services and submit sufficient proof of same to the USPTO. TMEP 1103. My guess is that only one of these applications, if any, actually registers. The fact that Anheuser-Busch filed four applications for variations of the same mark suggests they have not decided which version they plan on using.

In any event, it looks like Anheuser-Busch is planning a public awareness campaign related to the responsible consumption of alcohol and DRINKWEISER (or some variation) will be the tagline. By the way, for those fans of the DILLY DILLY phase, Anheuser-Busch owns two pending federal trademark applications for it, one covering beer and the other covering headwear and shirts. The application covering beer is in the final stage of the registration process.