Tuesday, November 12, 2019

Alligator Farm in Florida Files Application to Register CHANCE THE SNAPPER as a Trademark for Clothing, Live Performances by an Alligator

You've probably heard of Chance the Rapper. But CHANCE THE SNAPPER? If you're from Chicago, maybe. This past summer, the 5-foot-long alligator nicknamed Chance the Snapper by an online poll was captured after spending a week in Chicago's Humboldt Park on the city's West Side. After being captured, the city transferred the alligator to the St. Augustine Alligator Farm Zoological Park in St. Augustine, Florida.


It was the St. Augustine Alligator Farm, Inc. that filed a federal trademark application for CHANCE THE SNAPPER on November 7. The application covers:
  • Entertainment services, namely, live performances by an alligator (Class 41); and
  • Clothing, namely, shirts, hats, jackets, sweatshirts, headwear, footwear (Class 25.
According to the application, the St. Augustine Alligator Farm has been using CHANCE THE SNAPPER as a trademark for these goods and services since at least July 18, 2019 (specimens of use submitted with the application are seen above and below).


But will the alligator farm run into issues with the U.S. Patent and Trademark Office during the registration process? Possibly.

For starters, Chance the Rapper obtained his own federal trademark registration for CHANCE THE RAPPER in 2014, which also covers a variety of entertainment services in Class 41 and apparel in Class 25. If the USPTO believes CHANCE THE SNAPPER is confusingly similar to that mark, it will refuse registration of CHANCE THE SNAPPER under Section 2(d) of the Trademark Act. See TMEP 1207 et. seq.

Regardless of whether the USPTO thinks there is a likelihood of confusion with the CHANCE THE RAPPER mark, it could still refuse registration under Section 2(a) of the Trademark Act, which bars the registration of a mark that "consists of or comprises matter which, with regard to persons...falsely suggests a connection with them." TMEP 1203.03; 15 USC 1052(a).

To establish that a proposed mark falsely suggests a connection with a person or an institution, it must be shown that:
  1. the mark is the same as, or a close approximation of, the name or identity previously used by another person or institution;
  2. the mark would be recognized as such, in that it points uniquely and unmistakably to that person or institution;
  3. the person or institution named by the mark is not connected with the activities performed by the applicant under the mark; and
  4. the fame or reputation of the person or institution is such that, when the mark is used with the applicant’s goods or services, a connection with the person or institution would be presumed.
TMEP 1203.03(c)(i). Further "a mark does not have to comprise a person’s full or correct name to be unregistrable; a nickname or other designation by which a person is known by the public may be unregistrable under this provision of the Act." TMEP 1203.03.

What do you think? Is CHANCE THE SNAPPER for entertainment services and apparel confusingly similar to CHANCE THE RAPPER for entertainment services and apparel? Is CHANCE THE SNAPPER a close approximation of CHANCE THE RAPPER, would it be recognized as pointing uniquely and unmistakably to Chance the Rapper, and would people believe Chance the Rapper is associated with CHANCE THE SNAPPER even though he might not be?

We'll find out what the USPTO thinks in approximately three months when this application is reviewed by an examining attorney.

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