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.

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:

• Entertainment in the nature of live performances by a musical artist or entertainer; entertainment in the nature of visual and audio performances by a musical artist or entertainer; and various related services (Class 41);
• Streaming of music, audio material, images, video material and other multimedia content over the internet, wireless networks and other computer networks and electronic communications networks; electronic transmission of streamed and downloadable music, audio, video and other multimedia content for others; broadcasting and electronic transmission of streamed and downloadable digital music, audio, video and multimedia content for others (Class 38);
• A wide variety of clothing items (Class 25);
• Various novelty items like posters, calendars, temporary tattoos, postcards, and scrapbooks (Class 16); and
• Musical sound recordings, downloadable video recordings featuring music, electronic games via the internet, and various related goods (Class 9).

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.). 

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.

Quarterly Index (4/1/19 - 6/30/19)

Entertainment Trademark Filings:

• Kim Kardashian West Has Already Filed 16 Applications to Register Her Newest Son's Name - PSALM WEST - as a Trademark [5/24/19]
• A Kendall/Kylie Cosmetics Collab? Kendall Jenner Files Trademark Applications for KENDALL, KENDALL JENNER Covering Cosmetics [5/7/19]
• Is Travis Scott Opening a Retail Clothing Store Called S.P.A.C.E VILLAGE? A Recent Trademark Application Suggests He Might Be [4/26/19]
• Travis Scott Files Applications to Register His Name as a Trademark [4/1/19]

Food and Drink Trademark Filings:

• Sugar Factory Restaurant Files Application to Register Configuration of Colored Sandwich Buns as a Trademark [6/25/19]
• A Bumble Beer? Dating App Company Files Application to Register BUMBLE BREW as a Trademark for Beer, Many Other Goods and Services [4/16/19]

Sports Trademark Filings:

• Is an NFL Team Coming to Duluth? NFL Files Application to Register DULUTH ESKIMOS as a Trademark for Professional Football Games, Related Services [4/30/19]

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.

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:

• Hair accessories, namely, hair barrettes, hair bands, hair bows, hair clips, hair ties; hair ornaments, hair pins, hair scrunchies, hair chopsticks, hair twisters and hair wraps; hair extensions; ornamental novelty pins (Class 26);
• Baby carriers worn on the body; all-purpose carrying bags; back packs; handbags; tote bags; purses; wallets; bags for carrying babies' accessories; diaper bags; athletic bags; cosmetic bags sold empty; cosmetic carrying cases sold empty; toiletry cases sold empty; tote bags; duffle bags; umbrellas (Class 18);
• Strollers; stroller covers; children's car seats; fitted covers for children's car seats (Class 12); and
• Entertainment in the nature of providing information by means of a global computer network in the fields of entertainment and pop culture; entertainment services, namely, personal appearances by a celebrity (Class 41).

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.

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.