Friday, August 30, 2019

The San Antonio Spurs Are Filing Trademark Applications for Hockey Teams

Is minor league hockey coming back to San Antonio? Recent trademark applications suggest it might be.

On August 26, San Antonio Spurs, LLC d/b/a Spurs Sports & Entertainment filed four hockey-related trademark applications with the U.S. Patent and Trademark Office - one for the words SAN ANTONIO IGUANAS, one for the words SAN ANTONIO DRAGONS, and applications for the related logos seen below.



Both the Dragons and the Iguanas used to be minor league hockey teams in San Antonio. The Dragons were a team in the International Hockey League for two seasons from 1996-1998. The Iguanas were in the Central Hockey League and active from 1994-1997 and again from 1998-2002. Both teams played at Freeman Coliseum.

These trademark applications cover a variety of clothing items, like uniforms, shirts, pants, and hats, as well as a variety of merchandise like autograph books, printed guides in the field of hockey, and stickers, so it's possible the Spurs only intend to sell vintage hockey apparel and merchandise. 

The services in Class 41, however, are the most interesting. They cover "Entertainment services in the nature of hockey games and hockey related exhibitions." These are services typically seen in a trademark registration for a hockey team (like this one for the Boston Bruins).

Does this mean minor league hockey is actually coming back to San Antonio? Not necessarily. Although the Spurs filed these applications on an intent-to-use basis (see TMEP 806.01(b)), which requires them to have a bona fide intention to use these trademark in conjunction with the listed goods and services (including hockey games), it in no way requires the Spurs to start using the marks with those goods and services. However, if the Spurs want to obtain a registration for these marks in Class 41, they'll eventually need to actually start using these marks in conjunction with hockey games and submit sufficient proof of same to the USPTO. See TMEP 1103.

Filing trademark applications for vintage teams isn't uncommon. Back in April, I blogged about the NFL's trademark applications for DULUTH ESKIMOS, an old football team. 

According to my quick search, these trademark applications are the first federal applications for hockey-related goods/services ever filed by San Antonio Spurs, LLC.

Tuesday, August 20, 2019

Palm Springs AHL Affiliate Files Three More Trademark Applications for Potential Team Names

Oak View Group, LLC, the owner of Seattle's new NHL franchise, added three more candidates to the list of possible names for the team's AHL affiliate in Palm Springs. On August 15, the group filed three new trademark applications with the USPTO for:
All the applications cover "Entertainment in the nature of hockey games" in Class 41. The applications were filed by the same attorney and law firm that filed three other trademark applications for potential team names earlier in August that cover the same services:
These earlier applications seemed to suggest a "bird" theme for the new AHL team, but the recent applications for "DRAGONS" and "SUN" indicate that might not be the case.

It's not uncommon for a new team to file multiple trademark applications on an intent-to-use basis for potential team names. Back in June 2016, I blogged about several filings for Tucson, Arizona's new AHL team (the Arizona Coyotes affiliate). That team ended up choosing the TUCSON ROADRUNNERS. And back in January 2016, I blogged about applications for the LA CHARGERS filed by the Chargers Football Company before the NFL teamed moved to LA.

While you may see more trademark filings by the Oak View Group, LLC, it's very possible the name of the new AHL team in Palm Springs will be one of those listed above.

Thursday, August 15, 2019

Recent Trademark Applications Suggest Yuengling Brewery May Be Launching a New Beer Called "Yuengling Flight"

Is a new beer in the works over at Yuengling? Recent trademark applications filed with the U.S. Patent and Trademark Office suggest so.
On August 9, D.G. Yuengling & Son, Inc. filed two federal trademark applications with the U.S. Patent and Trademark Office - one for the design seen above and the other for the words YUENGLING FLIGHT. Both applications cover "beer" in Class 32.

Yuengling, which is the oldest operating brewing company in the United States, filed both applications on an intent-to-use basis. That basis indicates the brewery is not currently using this name and logo in commerce as a trademark for beer yet, but has a bona fide intention to do so in the near future. See TMEP 806.01(b).

In other words, it seems these applications are for the name and logo of a new beer that Yuengling plans to release in the near future. That's especially true considering the brewery will need to submit labels or packaging for a beer that shows these marks before the marks can be registered. See TMEP 904.03. Had these applications listed something like "brewery services," I would not be as convinced they are for the name/logo of a beer rather than something like an advertising slogan for the brewery as a whole.

Last year, Yuengling launched a new "Spread Your Wings" advertising campaign that pays tribute to the brewery's original name - "Eagle Brewery" - and the eagle design featured on its labels. These recent trademark applications, therefore, appear to be very on brand.

According to my quick search, these are the only federal trademark applications filed by D.G. Yuengling & Son, Inc. in 2019.

Thursday, July 25, 2019

Hot Girl Summer is Here - Megan Thee's Record Label Files Five Applications to Register HOT GIRL SUMMER as a Trademark

It's been dubbed the "catchphrase of summer 2019" and now it's the subject of five federal trademark applications. Rapper Megan Thee reportedly coined the term HOT GIRL SUMMER earlier this year, which she says means "“It’s just basically about women — and men — just being unapologetically them, just having a good-ass time, hyping up your friends, doing you, not giving a damn about what nobody got to say about it." With the phrase taking off, it appears Thee's record company is now taking steps to protect it through federal trademark registrations with the U.S. Patent and Trademark Office.
On July 21, Theory Entertainment, LLC (the legal entity that owns the 300 Entertainment logo trademark registration, which is Thee's record label) filed five trademark applications for HOT GIRL SUMMER, each in a different class (hence the five applications), covering:
The applications were filed on an intent-to-use basis, which means the record label must actually use the phrase as a trademark for the listed goods and services before these applications can mature into registrations. See TMEP 1101 et. seq.

On that same day, Theory Entertainment filed trademark applications for REAL HOT GIRL SHIT, COGNAC QUEEN, and TINA SNOW, all covering the same goods and services. Back in April 2019, the label filed similar applications for HOT GIRL MEG and MEGAN THEE STALLION.

A few days ago, Billboard.com incorrectly reported that Thee filed a trademark application for HOT GIRL SUMMER on July 10. While an application to register HOT GIRL SUMMER as a trademark for clothing was filed on July 10, it was not filed Thee or her label, but rather by an individual in D.C. who appears to have no relation to the rapper. Procedurally, because that application was filed before Thee's applications, it will be a barrier to Thee's registration of the same mark, but Thee has several options for getting over that barrier, both inside and outside the USPTO (a cease and desist letter, obtaining an assignment of the mark, opposing the application, etc.). 

Tuesday, July 9, 2019

Toy Company WowWee Files Application to Register BOTTLE CAP CHALLENGE as a Trademark

Have you heard of the viral Bottle Cap Challenge making its rounds on social media in recent weeks? The challenge involves normal people (and celebrities) unscrewing a bottle cap with a round house kick. Exciting, huh?
One company, however, is trying to register the phrase as a federal trademark. On July 4, Hong Kong-based toy company WowWee filed an application to register BOTTLE CAP CHALLENGE as a trademark with the U.S. Patent and Trademark Office. The application covers "Games, toys and playthings" in Class 28. WowWee filed the application on an intent-to-use basis. TMEP 806.01(b); 15 USC 1051(b).

Does this mean WowWee can prevent others from using the term BOTTLE CAP CHALLENGE? No.

For starters, the vast majority of those using "Bottle Cap Challenge" are not using it as a trademark (i.e., to identify the source of goods or services). They are only using it as the name of a particular viral challenge. And this fact may make it harder for WowWee to register it as a trademark. See TMEP 1202.04(b) ("The more commonly a term or phrase is used in everyday speech or in an associational or affinitive manner by various sources, the less likely consumers will perceive the matter as a trademark or service mark for any goods and services.").

Further, WowWee's trademark application only covers "Games, toys and playthings." If this application actually registers, WowWee's trademark rights are limited to those goods and anything related to them. Selling unrelated goods or offering unrelated services under the same mark will not infringe the toy company's trademark rights.

And finally, because the trademark application was filed on an intent-to-use basis, WowWee must actually start using BOTTLE CAP CHALLENGE as a trademark for "Games, toys and playthings" and submit sufficient proof of such use to the USPTO before this mark can be registered. See TMEP 1103. If they never start selling toys under this trademark, the application will eventually go dead and the mark won't register.

According to my quick search, this is the first and only federal trademark application for BOTTLE CAP CHALLENGE pending with the USPTO.

My best guess as to why the toy company filed this application? They probably want to market some type of toy or game based on the Bottle Cap Challenge.

Tuesday, June 25, 2019

Sugar Factory Restaurant Files Application to Register Configuration of Colored Sandwich Buns as a Trademark

Colored hamburger buns as a trademark? That's what Sugar Factory, LLC is trying to register by way of a recent application filed with the U.S. Patent and Trademark Office. The restaurant, which has multiple locations nationwide and is apparently frequented by celebrities, filed the application for the mark seen below on June 20th.
The application describes the mark as:
[A] three-dimensional configuration of five burgers, sliders or sandwiches, with the first burger, slider or sandwich having top and bottom buns depicted in the color blue, the second burger, slider or sandwich having top and bottom buns depicted in the color red, the third burger, slider or sandwich having top and bottom buns depicted in the color yellow, the fourth burger, slider or sandwich having top and bottom buns depicted in the color green, and the fifth burger, slider or sandwich having top and bottom buns depicted in the color purple. The broken lines depicting a toy duck, a plate, the shape of the buns, and certain components of burgers, sliders or sandwiches indicate placement of the mark on the goods and are not part of the mark.
The goods covered by the application are "Burgers; sandwiches, sliders." According to the application, the Sugar Factory has used the mark since April 2017.

The specimen submitted with the application, which is supposed to show how the mark is actually used, is below.
A color may be registered as a trademark if it is not functional and shown to have acquired distinctiveness on or in connection with the applicant's goods or services. TMEP 1202.05. A color is functional if it "yields a utilitarian or functional advantage, for example, yellow or orange for safety signs." TMEP 1202.05(b). Further, an applicant must demonstrate that the color mark has acquired distinctiveness, or "source-indicating significance in the minds of consumers." TMEP 1202.05(a). This is a substantial burden. Id.

Does a series of colored sandwich buns yield a utilitarian or functional advantage, like red on a stop sign or yellow/orange on a safety sign? Do you think consumers will recognize the Sugar Factory as the source of these colored sandwich buns? We'll see what the USPTO thinks when this application is assigned to an examining attorney in approximately three months.

Friday, May 24, 2019

Kim Kardashian West Has Already Filed 16 Applications to Register Her Newest Son's Name - PSALM WEST - as a Trademark

Kim Kardashian wasted no time filing applications to register the name of the newest addition to her family, her son Psalm West, as trademarks with the U.S. Patent and Trademark Office. On May 18, less than ten days after Psalm West was born, she filed 16 trademark applications for his name.

The applications cover a variety of merchandise, including:
The applications were filed by an entity called Kimsaprincess Inc., which also owns multiple trademark applications for NORTH WEST, CHICAGO WEST, and SAINT WEST. While that makes it pretty obvious these trademark applications are actually associated with Kim, she also provided her written consent to register PSALM WEST's name as a trademark with the applications, leaving no doubt these applications are actually associated with the real Psalm West.

Section 2(c) of the Trademark Act prohibits the registration of a trademark that consists of the name of a living individual without that individual's consent. In the case of minors, parents can sometimes provide this consent on their behalf. TMEP 1206.04(a).

The serial numbers associated with these applications, all of which were filed on an intent-to-use basis, are below.

Tuesday, May 7, 2019

A Kendall/Kylie Cosmetics Collab? Kendall Jenner Files Trademark Applications for KENDALL, KENDALL JENNER Covering Cosmetics

Kylie Jenner, Kendall's sister, launched her Kylie Cosmetics brand about three years ago and subsequently build it into an empire. Is Kendall now launching her own cosmetic line? Or planning a collaboration with Kylie? According to recent trademark applications, she might be.
On May 2, Kendall Jenner, Inc. filed trademark applications for KENDALL JENNER and KENDALL with the U.S. Patent and Trademark Office. Both applications cover the same goods in Class 3, namely:
Fragrances; eau de parfum; eau de toilette; perfumes; hair care preparations; hair styling preparations; bath and shower gels; bubble bath; body powders; body lotions; body creams; face lotions; body milks; skin toners; skin cleansers; beauty masks; body scrubs; facial scrubs; body oils; deodorant for personal use; lip balm; lip gloss; cosmetics; cosmetic preparations; nail polish; nail polish remover; and nail care preparations
Further, not only did Kendall give consent to Kendall Jenner, Inc. to file her name as a trademark (which is required under Section 2(c) of the Trademark Act), she also gave consent to Kylie's entity, Kylie Jenner, Inc. (see below). In other words, Kylie Jenner, Inc. is permitted to file a trademark application for KENDALL or KENDALL JENNER, strongly suggesting a collaboration between the sisters (which apparently they've had planned for a long time, considering Kendall signed the consent in 2015).
Interestingly, back in 2011 the sisters' legal entities jointly filed trademark applications for KENDALL AND KYLIE covering cosmetics, but those registrations never issued because the trademark was never actually put into use.

Kendall's legal entity also filed these most recent trademark applications on an intent-to-use basis, suggesting it is not using her name as a trademark for cosmetics yet, but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051. According to my quick search, these are the first and only federal trademark applications filed by Kendall Jenner, Inc. in 2019.

For those of you hoping for a cosmetic collaboration between the Jenner sisters, you might be getting your wish soon.

Tuesday, April 30, 2019

Is an NFL Team Coming to Duluth? NFL Files Application to Register DULUTH ESKIMOS as a Trademark for Professional Football Games, Related Services

On April 25, the day the draft started, NFL Properties LLC (the owner of famous NFL trademarks like SUPER BOWL, the NFL logo, and PRO BOWL) filed two federal trademark applications for DULUTH ESKIMOS with the U.S. Patent and Trademark Office.
Apparently, the Duluth Eskimos played in the National Football League in the 1926 and 1927 seasons. While NFL Properties LLC has filed trademark applications for vintage football teams in the past, like the CANTON BULLDOGS, BALTIMORE COLTS, and the BOSTON REDSKINS, those applications only covered apparel (presumably because the NFL was selling vintage football clothing).

While one of the DULUTH ESKIMOS applications also covers apparel, it is the other one that is most interesting. The second DULUTH ESKIMOS application covers the following services in Class 41:
Education and entertainment services in the nature of professional football games and exhibitions; providing sports and entertainment information via a global computer network or a commercial on-line computer service, or by cable, satellite, television or radio; arranging and conducting athletic competitions, namely, professional football games and exhibitions; football fan club services, namely, personal appearances by a costumed mascot for professional football teams; entertainment services, namely, live musical and dance performances provided during intervals at sports events; educational services, namely, conducting physical education programs
Does this mean the NFL is bringing a franchise to Duluth? On the one hand, the intent-to-use filing basis of the application does suggest that NFL Properties LLC has a bona fide intention to provide these services under this trademark in the near future. TMEP 806.01(b); 15 USC 1051(b). And this application will go dead unless the NFL actually starts using the DULUTH ESKIMOS trademark in conjunction with these services and submits sufficient proof of such use to the USPTO. See TMEP 1103. Finally, these are the typical services you see listed in a trademark application or registration for an NFL team's name.

On the other hand, NFL Properties LLC doesn't own any other trademarks for NFL team names. As I've blogged about before, most NFL team names are owned by the local franchise owner (although it is an attorney at the NFL who files the applications in the local franchise's name). For example, New England Patriots LLC owns the NEW ENGLAND PATRIOTS trademarks and Cincinnati Bengals, Inc. owns the CINCINNATI BENGALS trademarks. If this application is actually for a team's name, it would be the only team name owned by NFL Properties LLC instead of the local franchise (though, technically, NFL Properties LLC could later assign this trademark to the local franchise).

Perhaps the filings were made only because the NFL intends to send apparel or otherwise promote NFL games in conjunction with this vintage trademark? Or perhaps there are talks to bring back the Duluth Eskimos? Unfortunately, it's impossible to ascertain the NFL's intention from these filings alone. As the applications progress, we may get more details.

Friday, April 26, 2019

Is Travis Scott Opening a Retail Clothing Store Called S.P.A.C.E VILLAGE? A Recent Trademark Application Suggests He Might Be

Is the rapper Travis Scott opening up a retail clothing store called S.P.A.C.E VILLAGE? He might be, according to a recent federal trademark application.
On April 22, an entity called LaFlame Retail, Inc. filed an application to register S.P.A.C.E VILLAGE as a trademark with the U.S. Patent and Trademark Office. The application was filed in two classes for the following goods and services:
  • Clothing, namely, t-shirts, shirts, long-sleeved shirts, polo shirts, hooded shirts, sweatshirts, hooded sweatshirts, jerseys, shorts, sweat pants, jackets, scarves, pajamas, robes, boxer shorts, boxer briefs, underwear, head bands, wrist bands as clothing, swimsuits, skirts, dresses, bras, cardigans, blouses, tank tops, pants, coats, sweaters, leg warmers, socks, belts; footwear, namely, shoes, athletic shoes, slippers, boots, sandals; headwear, namely, hats, visors, beanies and caps (Class 25); and
  • Retail store services featuring clothing and general merchandise; On-line retail store services featuring clothing, general merchandise and downloadable pre-recorded music and video (Class 35).
In short, is appears LaFlame Retail, Inc. intends to use this trademark as the name of an extensive clothing line and a retail clothing store.

Is LaFlame Retail, Inc. associated with Travis Scott? For starters, "La Flame" is the rapper's well-known pseudonym. Further, last month a similarly-named entity called Laflame Enterprises, Inc. used the same attorney to file a trademark application for TRAVIS SCOTT, which I blogged about here. It's therefore safe to assume this application is also related to Travis Scott.

So, does this application mean Travis Scott is actually opening a retail clothing store and/or releasing a S.P.A.C.E VILLAGE clothing line? Maybe. This application was filed on an intent-to-use basis, suggesting the S.P.A.C.E VILLAGE trademark is not currently being used with the goods/services listed above, but LaFlame Retail, Inc. has a bona fide intention to use it in the near future. TMEP 806.01(b); 15 USC 1051(b). If the applicant wants this trademark to actually register, it will need to start using the trademark in interstate commerce and submit sufficient proof of same to the USPTO. See TMEP 1103. If it does not, the application will eventually be abandoned.

According to my quick search, this is the first and only federal trademark application owned by LaFlame Retail, Inc.

Tuesday, April 16, 2019

A Bumble Beer? Dating App Company Files Application to Register BUMBLE BREW as a Trademark for Beer, Many Other Goods and Services

The company behind the popular dating app Bumble, Bumble Holding Limited, may be coming out with a beer, if a recent trademark application is any indication.
On April 11, Bumble Holding Limited filed an application to register BUMBLE BREW as a trademark for "beer" (and several other goods and services) with the U.S. Patent and Trademark Office.

Does this mean the dating app company is releasing a beer called BUMBLE BREW? Maybe. The company filed this application on an intent-to-use basis, which is supposed to mean the company is not using the BUMBLE BREW trademark to sell beer yet but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). The company is by no means obligated to start selling BUMBLE BREW beer, but a failure to use the trademark with those goods will result in the entire application going dead (if Bumble does not submit proper evidence of use on a timely basis or does not delete any goods/services it no longer intends to provide from the application).

Interestingly, the BUMBLE BREW application doesn't only cover "beer." It covers a large variety of goods and services across 14 different classes, including the following:
  • Computer software for the booking of bars, restaurants and accommodation; computer software for the ordering of food and drink (Class 9);
  • Whips, harness and saddlery (Class 18);
  • Meat, fish, poultry and game (Class 29);
  • Coffee, tea, cocoa and artificial coffee (Class 30);
  • Alcoholic beverages (except beers); wine; cider (Class 33);
  • Restaurant, bar and catering services (Class 43); and
  • Internet based dating services (Class 45).
Perhaps Bumble is considering a Bumble-themed brew pub or restaurant? Pay attention to this application to find out.

Monday, April 1, 2019

Travis Scott Files Applications to Register His Name as a Trademark

Or, more accurately, his corporation. On March 27, LaFlame Enterprises, Inc. filed the first ever applications to register TRAVIS SCOTT as a trademark with the U.S. Patent and Trademark Office. Jacques Bermon Webster II, aka Travis Scott, is apparently the president of Laflame Enterprises, Inc.
The two applications, one of which was filed on an intent-to-use basis, cover a variety of goods and services you might expect from a rapper, songwriter, singer, and record producer. The goods and services covered by the in use application (meaning these goods and services are apparently already being provided under the TRAVIS SCOTT trademark) are:
  • Audio and video recordings, namely, digital audio and video files downloadable from the Internet, audio and audio video tapes and discs, CDs, DVDs, laser discs, and phonograph records, all featuring music and artistic performances; downloadable musical sound recordings and ringtones; downloadable video recordings featuring music; sunglasses and sunglass cases; protective covers and cases for cell phones, laptops and portable media players (Class 9);
  • Paper goods, namely, posters, prints, decals, temporary tattoo transfers, stickers, printed tickets, photographs, event programs; calendars; postcards (Class 16);
  • Clothing, namely, t-shirts, shirts, long-sleeved shirts, polo shirts, hooded shirts, sweatshirts, hooded sweatshirts, jerseys, shorts, sweat pants, jackets, scarves, pajamas, robes, boxer shorts, boxer briefs, underwear, head bands, wrist bands as clothing, swimsuits, skirts, dresses, bras, cardigans, blouses, tank tops, pants, coats, sweaters, leg warmers, socks, belts; footwear, namely, shoes, athletic shoes, slippers, boots, sandals; headwear, namely, hats, visors, beanies and caps (Class 25); and
  • Entertainment services, namely, conducting entertainment exhibitions in the nature of live musical performance tours and music festivals; entertainment services, namely, presentation of live and on-line non-downloadable video in the nature of show performances featuring music and musical performances; planning, arranging, organizing and conducting of shows and tours featuring musical performances; entertainment in the nature of live performances by a musical artist, musical group and musical band; entertainment in the nature of live visual and audio performances by a musical artist, musical group and musical band; entertainment services, namely, providing a web site featuring non-downloadable musical performances, musical videos, related film clips, photographs, and other multimedia materials featuring music and entertainment; fan club services; providing a website featuring entertainment information regarding musical groups, musicians, musical sound recordings, music videos, tour schedules, music performance ticket information and music; entertainment in the nature of live traveling tours by a professional entertainer, musical group and musical band featuring music (Class 41).
The goods and services covered by the intent-to-use TRAVIS SCOTT application (those which are not apparently being offered under the TRAVIS SCOTT trademark yet but LaFlame Enterprises has a bona fide intention to provide in the near future) are:
  • Jewelry; clocks and watches; key chains; jewelry, namely, dog tags for wear by humans for decorative purposes; jewelry cases; boxes for timepieces (Class 14);
  • Bags; backpacks; umbrellas; carrying cases; canes; purses and wallets; dog apparel; luggage (Class 18); and
  • Cups; coffee cups; plates; bowls; lunchboxes; water bottles sold empty; bottle openers (Class 21).
According to my quick search, these are the first ever federal trademark applications filed by LaFlame Enterprises, Inc. and the first trademark applications for TRAVIS SCOTT filed by anyone.

It is not uncommon for celebrities and athletes to register their names as trademarks for the goods and services they provide under their name. For example, I've blogged about applications filed by Baker Mayfield, Conor McGregor, Amy Schumer, and Crissy Teigen in the past. 

Notably missing from the TRAVIS SCOTT trademark applications, however, is Jacques Bermon Webster II's written consent to register his stage name as a trademark. Section 2(c) of the Trademark Act prohibits the registration of a trademark that consists of or comprises a name, portrait, or signature identifying a particular living individual except by his/her written consent. That includes stage names. TMEP 1206.01. LaFlame Enterprises will need to provide that written consent before these marks can be registered.

Quarterly Index (1/1/19 - 3/31/19)

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

Friday, March 8, 2019

A PBR Seltzer? Maybe, According to Pabst Brewing Company's Recent Trademark Applications

The company behind the beer previously (or still?) known for being a favorite among hipsters may be moving into the trendy alcoholic seltzer business if recent trademark applications are any indication.
On March 4, Pabst Brewing Company, LLC filed applications to register PABST BLUE RIBBON STRONGER SELTZER and STRONGER SELTZER as trademarks for "alcoholic beverages, namely, hard seltzer" with the U.S. Patent and Trademark Office.

The brewing company filed both applications on an intent-to-use basis, suggesting it is not currently using these marks to sell the listed goods but has a bona fide intention to do so in the near future. 15 USC 1051(b); TMEP 806.01(b).

These are the only two active trademark applications or registrations for a seltzer owned by Pabst Brewing Company, LLC. Back in April 2016, the company filed an application for GILTY SELTZER covering "hard seltzer [and] hard cider" but it was refused registration due to GILT BAR, an existing registration covering bar and restaurant services. Pabst never responded to the refusal and the application went dead.

Will we see a PBR seltzer this summer? We just might. And for whiskey fans, apparently PBR recently announced it's getting into the whiskey business too.

Wednesday, March 6, 2019

Recent Trademark Applications Suggest Allegiant Travel Company May Be Expanding Well Outside the Airline Industry

Recent federal trademark applications suggest discount airline Allegiant may be getting into the restaurant and entertainment center business (and into several other businesses).
On March 1, Allegiant Travel Company (the parent company of Allegiant airlines) filed an application with the U.S. Patent and Trademark Office to register ALLEGIANT NONSTOP as a trademark for:
  • Entertainment and recreation services, namely, providing amusement and recreation center facilities with an aviation theme (Class 41); and
  • Casual restaurants with an aviation theme featuring American cuisine (Class 43)
On that same day, Allegiant Travel Company filed another application for PLAYNONSTOP covering the following:
  • Providing a website featuring issuing stored value cards for use at entertainment centers (Class 36); and
  • Providing a website featuring booking and reservation services for birthday parties at entertainment centers (Class 41)
Interestingly, these are not the first federal trademark applications outside of the airline industry filed by Allegiant Travel Company recently. Since July 2018, the company has filed applications for:
  • GOLFSEEKER for "Entertainment services, namely, providing golf course and golf club facilities; and entertainment in the nature of golf tournaments"
  • ZEN 4CE for "Providing recreational areas in the nature of quiet lounges"
  • 4CE'D ESCAPE for "Entertainment services in the nature of escape room attractions"
  • GRIP N ROLL for "Providing bowling alleys"
  • JUNIOR G'S for "Providing recreational areas in the nature of play areas for children"
  • G-PRIX for "Rental of go-karts"
  • DARK 4CE for "Providing facilities and equipment for playing laser tag games"
  • SUNSUITES for "Hotel and resort hotel services"
Do the trademark applications mean Allegiant is definitely going into these various fields? Not exactly. Allegiant filed each application on an intent-to-use basis, suggesting it is not using these marks to provide 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 marks can register, Allegiant must start using them to render the listed services and submit sufficient proof of such use to the U.S. Patent and Trademark Office. See TMEP 1103. It is not required to start using the marks, however.

In any event, it looks like Allegiant may have big plans to expand outside the airline industry.

Monday, February 11, 2019

Czech Small Arms Company Files Application to Register CZECH SMALL ARMS as a Trademark For Firearms

On February 6, Czech Small Arms, s.r.o., a company organized in the Czech Republic, filed an application to register CZECH SMALL ARMS as a trademark for "Firearms" in Class 13 with the U.S. Patent and Trademark Office. According to the application, Czech Small Arms has used CZECH SMALL ARMS as a trademark for firearms since January 2010. The specimen submitted with the application, which is submitted to prove use of the trademark in commerce, is below.
But is the trademark primarily geographically descriptive, meaning the USPTO must refuse to register it under Section 2(e)(2) of the Trademark Act unless it has acquired distinctiveness?

To establish, at least initially, that a mark is primarily geographically descriptive, the examining attorney at the USPTO must show:
  1. the primary significance of the mark is a generally known geographic location;
  2. the goods or services originate in the place identified in the mark; and
  3. purchasers would be likely to believe that the goods or services originate in the geographic place identified in the mark.
TMEP 1210.01(a).

Is the Czech Republic a generally known geographic location? Do the firearms originate there? Are consumers likely to believe the firearms originate from the Czech Republic? If the answer to these questions is yes, Czech Small Arms will have a difficult time registering this trademark (on the Principal Register, which affords the most legal benefits, at least).

An applicant can get a primarily geographically descriptive trademark registered on the Principal Register only if it can show the mark has acquired distinctiveness under Section 2(f) of the Trademark Act. Generally, a mark acquires distinctiveness when the consuming public recognizes that the goods sold under the mark are produced by a particular manufacturer, as opposed to simply perceiving the trademark as a geographically descriptive designation. 

Sometimes a mark is presumed to have acquired distinctiveness if the applicant can show substantially exclusive and continuous use of the mark for at least five years. TMEP 1212.05. Otherwise, the applicant must submit substantial evidence to prove the mark has acquired distinctiveness. TMEP 1212.06.

If an applicant cannot prove acquired distinctiveness, it can settle for a registration on the Supplemental Register. TMEP 1210.07(a). In some cases, however, a term may be so geographically descriptive that it is deemed incapable of identifying the source of the products, and thus does not function as a trademark and cannot be registered at all. Id; see also Bee Pollen from Eng. Ltd., 219 USPQ 163 (TTAB 1983) (finding BEE POLLEN FROM ENGLAND incapable of distinguishing bee pollen from England).

What do you think? Is CZECH SMALL ARMS primarily geographically descriptive of the underlying goods? If so, do you think the CZECH SMALL ARMS mark is well-known enough so that it might be registered on the Principal Register with a Section 2(f) claim? Or is the mark too geographically descriptive to even be registered on the Supplemental Register? 

We'll see what the examining attorney at the USPTO thinks in approximately three to four months when this application is reviewed.

Friday, February 8, 2019

Is TEXAS PRISON WEDDINGS Merely Descriptive of Officiating...Texas Prison Weddings?

On February 4, an individual in Texas filed an application to register the words TEXAS PRISON WEDDINGS as a trademark with the U.S. Patent and Trademark Office. According to the application, the mark has been in use since December 20, 2015. A specimen submitted with the application, which covers "Providing wedding officiant services" in Class 45, is below.
But is TEXAS PRISON WEDDINGS merely descriptive of "providing wedding officiant services"? If so, the USPTO must refuse registration under Section 2(e)(1) of the Trademark Act (unless the mark has acquired distinctiveness).

According to TMEP 1209.01(b), a mark is merely descriptive if "it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." This determination involves "consideration of the context in which the mark is used..." Id. An examining attorney at the USPTO can look to sources like "websites, publications, labels, packages, advertising material, and explanatory text on specimens for the goods and services" to determine whether the mark is descriptive. Id. In sum, if a mark "immediately conveys knowledge of a quality, feature, function, or characteristic of an applicant’s goods or services," it is merely descriptive. Id.

So does the term TEXAS PRISON WEDDINGS immediately describe or convey knowledge of a quality, feature, function, or characteristic of the applicant's services, which are wedding officiant services directed towards Texas prisons, according to the specimen?

If the answer is yes, the applicant will need to (1) overcome the refusal by submitting arguments as to why the term isn't descriptive, (2) convince the USPTO that TEXAS PRISON WEDDINGS has acquired distinctiveness and is therefore eligible for registration on the Principal Register (extremely difficult to do, especially when the mark is less than five years old), (3) amend the application to the Supplemental Register, or (4) let the application lapse.

What do you think?

Wednesday, February 6, 2019

Kamala Harris Files Two Applications to Register Her Campaign Slogan as a Trademark

Presidential campaign season is kicking off again and with that comes federal trademark applications for various campaign slogans and logos. The most recent applications come from Kamala Harris, who recently announced her candidacy for president on January 21, 2019.

Almost two weeks later, on February 1, 2019, the Kamala Harris for the People non-profit corporation filed two trademark applications with the U.S. Patent and Trademark Office. The first application is for the words KAMALA HARRIS FOR THE PEOPLE, while the second is for the stylized version seen below.
Both applications cover the exact same goods and services, which are goods and services you'd expect a campaign-related trademark application to cover, such as:
  • Political campaign services, namely, promoting public awareness of Kamala Harris as a candidate for public office; providing online information regarding the 2020 presidential election; online retail store services (Class 35); 
  • Political campaign services, namely, fundraising in connection with the 2020 presidential election (Class 41);
  • Jewelry; lapel pins; cuff links (Class 14);
  • Yard signs; placards and banners; posters (Class 16); and
  • Apparel; headwear (Class 25).
These are the first federal trademark applications filed by the Kamala Harris for the People non-profit corporation. An attorney in the Seattle office of Perkins Coie filed the applications.

This isn't the first time I've blogged about a campaign-related trademark application, nor are such applications uncommon. In August 2015, Donald Trump filed an application for TRUMP covering a variety of campaign materials (that application matured into a registration). Later in August 2016, Evan McMullin filed an application for his presidential campaign logo (which is still registered). And finally, Kid Rock filed an application for KID ROCK FOR SENATE, despite apparently never having an intention to run for Congress (that application was refused for a variety of reasons and may not register).

Expect the filing of more campaign-related trademark applications as the campaign trail starts to heat up.

Wednesday, January 16, 2019

Is Lindsay Lohan Bringing Her Beach and Night Clubs to the United States? Recent Trademark Applications May Provide Hints.

Lindsay Lohan's new show on MTV, Lindsay Lohan's Beach Club, just aired its first episode last week. The show follows the dramatic staff of her Lohan Beach House beach club in Mykonos, Greece, which Lohan opened in May 2018. Back in October 2016, Lohan opened the "Lohan Nightclub" in Athens, Greece.

Does the actress now have plans to open a nightclub or beach club in the United States? Well, she recently filed a dozen federal trademark applications in the United States, several of which are for the logos of her beach/nightclubs and all of cover dance and nightclub services, along with a variety of other goods/services.

On January 11, Crossheart Productions, Inc. (Lohan's company) filed twelve trademark applications with the U.S. Patent and Trademark Office. The applications are for (1) the logo seen above, (2) the same logo without "LOHAN," and (3) the words LINDSAY LOHAN. The applications cover the following goods/services in four classes:
  • Dance club services; Discotheques; Entertainment services in the nature of an ongoing reality based television program; Entertainment services in the nature of continuing program series featuring live action, comedy and drama provided through cable television, broadcast television, internet, video on demand, and through other forms of transmission media; Entertainment services, namely, personal appearances by a n actress; Fan clubs; Night club services; Night clubs; Providing on-line entertainment information, namely, information about television programming (Class 41);
  • Bar services; CafĂ© services; Hotel and restaurant services; Hotel services; Hotel, restaurant and bar services; Resort hotel services; Restaurant and bar services; Restaurant services (Class 43);
  • Various clothing items, including beach cover-ups, beach footwear, camisoles, dresses, pareos, and sarongs (Class 25); and
  • Various cosmetic items, including body lotions, make-up, body scrubs, shower gels, shampoo, and perfumery (Class 3).
Lohan filed each version of the logo in each class and the words LINDSAY LOHAN in each class (hence the 12 total applications). The applications also included Lindsay Lohan's written consent to register her name as a trademark for these goods and services, which is required under Section 2(c) of the Trademark Act.

Does this mean Lohan is opening a night club or dance club in the United States? We can't tell from the applications alone, but we can make some inferences.

First, these applications were filed on an intent-to-use basis, which requires that the applicant have a "bona fide" intention of using these trademarks in conjunction with the listed goods/services in the near future. See TMEP 806.01(b). If Lohan had no intention of using these marks with some or all of the goods/services listed, any subsequent registration covering those goods/services is void with respect to those goods/services.

Second, Lohan must eventually start using these trademarks in conjunction with the listed goods/services before they can be registered and submit sufficient proof of such use to the USPTO. See TMEP 1103. In other words, if she wants a trademark registration that covers bar services, dance club services, or nightclubs, she must start operating a bar, dance club, or nightclub. Otherwise, she'll need to delete those goods/services from the application or let the application lapse.

Third, trademark rights are territorial, so Lohan can't rely on use of these trademarks with these goods/services in Greece to prove use in the United States (at least not under the current filing basis of the applications). And why file trademark applications for these goods/services in the United States unless you intend to provide them here? While they might offer her protection in the United States, they won't do much for her in Greece (she likely has similar trademark registrations in Greece).

In sum, while Lohan fans wanting a club in the United States shouldn't get overly excited, it does appear something is in the works. Pay attention to these trademark applications to find out.

Monday, January 14, 2019

POPSUGAR Inc. Files Application to Register Its Popular #TWINNING Hashtag as a Trademark

POPSUGAR's #Twinning celebrity lookalike tool took off in popularity a couple weeks ago. The tool allows you to upload a selfie, then uses an algorithm to match you with your celebrity "twin." Social media users have been posting the matches to their friends and followers under the hashtag #Twinning (which is also the name of the tool).
The hashtag is now the subject of a federal trademark application, which POPSUGAR Inc. filed on January 9th. The #TWINNING application covers the following services in Class 42:
providing temporary use of on-line, non-downloadable software to match the photograph of the user with similar photographs or images of celebrities, public figures or pop culture characters, for entertainment purposes
According to the application, POPSUGAR first started using #TWINNING as a trademark in conjunction with these services in February 2018. The screenshot above is the specimen POPSUGAR submitted with the application to prove it is using the hashtag as a mark. See TMEP 1301.04.

Don't let this application fool you into thinking any hashtag can be registered as a trademark. They can't, because "the hash symbol and the wording HASHTAG do not provide any source-indicating function because they merely facilitate categorization and searching within online social media..." TMEP 1202.18. However, hashtags can be registered as trademarks if they function as an identifier of the source of the applicant's goods or services. Id. If POPSUGAR only used #Twinning as a hashtag on social media, it would not be able to register the term as a trademark. But because the hashtag is also the name of the software tool, POPSUGAR has a better chance of getting it registered. See TMEP 1202.18(b).

A quick search of the U.S. Patent and Trademark Office's database reveals POPSUGAR currently owns 59 active trademark applications or registrations (though this is the first one for #TWINNING).

On another note, did you submit your selfie to the #Twinning tool? Before you do, you might want to read POPSUGAR's terms. As noted by The Fashion Blog, by uploading your image to the #Twinning tool, you are granting POPSUGAR a very broad license to use your image for nearly any purpose (though such broad licenses aren't uncommon in the social media space).