Wednesday, August 29, 2018

An American Idol Amusement Park Attraction? Maybe, According to a Recent Trademark Application

An American Idol-themed amusement park attraction may be in the works, if a recent trademark application is any indication.
On August 24th, FreemantleMedia North America, Inc. (the producer of American Idol) filed an application to register AMERICAN IDOL (in standard characters) as a trademark with the U.S. Patent and Trademark Office. But the services listed in this most recent application aren't for a reality show (they already have a registration covering those services). Instead, Freemantle North America listed the following services in the application:
Entertainment services in the nature of an amusement park attraction, namely, a themed area
An American Idol amusement park attraction? How will that work? Is it a ride? A talent competition? In what amusement park(s) will the attraction be placed? Unfortunately, the application does not provide any additional information related to Freemantle North America's plans.

But such information may come in the near future. Freemantle North America filed the application on an intent-to-use basis, suggesting it is not currently using AMERICAN IDOL as a trademark for these services yet, but has a bona fide intention to do so in the near future. 15 USC 1051(b); TMEP 806.01(b). Before this application can mature into a registration, however, the production company must start rendering the entertainment services listed in the application in interstate commerce and submit sufficient proof of same to the USPTO. See TMEP 1103.

In other words, generally that means the attraction is open and members of the public are traveling across state lines to visit it. When that occurs, Freemantle North America can submit various promotional materials used in the sale or advertising of the attraction to secure its registration for these services (so long as such materials prominently display the AMERICAN IDOL mark). TMEP 1301.04 et seq.

By that point, however, it's likely the theme park will already be announced. So if you're an American Idol fan, keep your eye out for a possible amusement park attraction coming soon.

Tuesday, August 21, 2018

Is GOOD COLD BEER Merely Descriptive of "Beer"?

On August 16th, a brewing company in Georgia filed an application to register GOOD COLD BEER for "Beer" in Class 32 as a trademark with the U.S. Patent and Trademark Office. The brewing company filed the application on an intent-to-use basis, suggesting it is not currently using the phrase as a trademark but has a bona fide intention to do so in the near future. But will it obtain a registration on the Principal Register?
As I've blogged about before, merely descriptive trademarks will be refused registration on the USPTO's Principal Register (which affords the most legal benefits) under Section 2(e)(1) of the Trademark Act unless and until the mark acquires distinctiveness (see Section 2(f) of the Trademark Act). Merely descriptive trademarks describe "an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." TMEP 1209.01(b). For example, in my blog post linked to above, the USPTO deemed the mark REMOTE DRUG TESTING to be merely descriptive of drug testing services.

In addition, the USPTO will refuse to register, on the Principal or Supplemental Registers, informational phrases or "common laudatory phrases or statements that would ordinarily be used in business or in the particular trade or industry." In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229 (TTAB 2010); TMEP 1202.04(a). The USPTO deems this matter not registerable "because consumers would perceive it as imparting its ordinary meaning and not as serving to identify and distinguish the applicant’s goods or services from those of others and to indicate their source." TMEP 1202.04(a). For example, the term BEST BEER IN AMERICA was deemed "so highly laudatory and descriptive of the qualities of its product that the slogan does not and cannot function as a trademark." In re Boston Beer Co. L.P, 53 USPQ2d 1056, 1058 (Fed. Cir. 1999).

Will GOOD COLD BEER suffer a similar fate? Will it be deemed merely descriptive and therefore appropriate only for registration on the Supplemental Register rather than the Principal? Will it be deemed so highly laudatory and descriptive that it must be refused registration completely? None of the above? We'll find out in approximately three months after this application is assigned to an examining attorney at the USPTO.

Tuesday, August 14, 2018

Samsung Files Applications to Register 8K, QLED 8K as Trademarks

Samsung appears to be gearing up for the launch of its new 8K television line with recent trademark applications filed on August 9th. On that date, the electronics giant filed applications to register a stylized 8K and QLED 8K as trademarks with the U.S. Patent and Trademark Office.
Both applications cover the same goods in Class 9, namely:
Televisions; Digital signage; Digital signage monitors; Monitors for large format displays, namely, liquid crystal display (LCD) monitors, light emitting diode (LED) monitors and plasma monitors; Data processing apparatus for large format display; Large-screen light emitting diode (LED) displays; Panels for large format displays, namely, LCD large format display panels, LED large format display panels, large format display panels and large format display electric panels; Computer software for operating digital signage; Digital signage players, comprised of computers, computer hardware and LCD displays; Digital signage display panels; Television sets; Television receivers; Display panels for television; Monitors for commercial purpose, namely, computer, television, video, and touchscreen monitors
Additionally, Samsung is claiming a priority date of August 3, 2018 under Section 44(d) of the Trademark Act based on similar applications filed in the UK. See TMEP 1003.

But will the USPTO refuse to register these marks as merely descriptive of the television-related goods listed in the application? In general, a merely descriptive mark "describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." TMEP 1209.01(b). Merely descriptive trademarks cannot be registered on the Principal Register (which affords the most legal rights) until and if such marks become distinctive as applied to the applicant's goods or services in commerce (often referred to as "acquired distinctiveness" or "secondary meaning"). TMEP 1212; 15 USC 1052(f).

The term "4k" refers to a screen resolution of 4,000 pixels, so presumably "8k" refers to a screen resolution of 8,000 pixels. Additionally, "QLED" is short for quantum-dot light-emitting diodes. Are such terms merely descriptive of a quality, characteristic, function, or feature of televisions? We'll find out what the examining attorney assigned to these applications thinks in about three months, but in past trademark applications for marks containing QLED and 4K covering similar goods, Samsung did receive merely descriptive refusals (like this one for QLED TV) or was required to disclaim "4k" because the USPTO deemed it to be a merely descriptive component of the mark.

What about the stylization of 8K and QLED 8K? Does presenting the marks in gold font avoid a merely descriptive refusal? Not necessarily. Generally, "[a]dding  stylization to descriptive or generic wording does not render the resulting mark registrable on the Principal Register unless the stylization creates a commercial impression separate and apart from the impression made by the wording itself, or the applicant can otherwise show by evidence that the particular stylized display has acquired distinctiveness." TMEP 1209.03(w). My guess is that the examining attorney will ignore the slight stylization and focus on the wording.

According to my quick search, Samsung has filed 140 trademark applications with the USPTO in 2018, including two applications filed earlier this year for 8K QLED and 8K HDR ELITE. The application for 8K QLED, filed in January 2018, received an Office action because the USPTO deemed it to be merely descriptive of televisions and because the USPTO believes it is confusingly similar to a registration for QLED owned by LG Electronics (and also due to an issue with the way the goods are described in the application).