Wednesday, August 31, 2016

RoboCop Reboot? New Trademark Applications Related to Potential Streaming Show Filed

Recent trademark applications filed at the U.S. Patent and Trademark Office hint that RoboCop may be coming back in the form of a streaming internet series. On August 26th, Orion Pictures Corporation in Beverly Hills filed two new trademark applications for ROBOCOP (the company owns four other registrations for ROBOCOP covering other goods and services).

Orion filed the first application in Class 041 for "Entertainment services, namely, production and distribution of a series of motion pictures featuring drama, action, crime, science-fiction and suspense." The first use date listed for those services is December 8, 1986 (probably when promotion of the July 1987 release of the original movie commenced).

It is the second application for ROBOCOP, however, that is more interesting. Orion filed that application in Class 041 for "Entertainment services, namely, an ongoing series featuring scripted action/drama provided through the internet; entertainment services, namely, providing ongoing webisodes featuring scripted action/drama via a global computer network[.]"

An ongoing series provided through the internet and webisodes (aka streaming)? Like a Netflix series? Amazon Prime? As a RoboCop fan, that all sounds good to me.

Orion filed the second ROBOCOP application on an intent-to-use basis, suggesting the film company is not using the mark in conjunction with an online streaming show yet but has a bond fide intention to do so in the near future. In other words, a streaming RoboCop series may be in the works. Stay tuned.

Tuesday, August 30, 2016

Is Korn Bringing Back The Family Values Tour? Recent Trademark Applications Provide Hints

The metal band Korn created The Family Values Tour back in 1998 with the hopes of starting an annual rock and hip hop tour. In its heyday, the Tour included the likes of Limp Bizkit, Ice Cube, Stone Temple Pilots, Linkin Park, Method Man and Redman, DMX, and Evanescence. The Tour, however, has not seen any life since its one day festival in 2013. Until now.
On August 25th, an entity called Family Values Returns, LLC filed three federal trademark applications for THE FAMILY VALUES TOUR. The goods and services covered by these applications include:
  • Class 041 - Entertainment services, namely, organizing touring festivals featuring heavy metal bands;
  • Class 016 - posters, postcards and stickers;
  • Class 025 - t-shirts, jackets and hats; and
  • Class 009Musical sound recordings, namely prerecorded compact discs and audio tape cassettes featuring music; video recordings, namely prerecorded video tape cassettes and digital video discs featuring musical performances and entertainment.
Sounds a lot like a music tour to me. These applications were filed on an intent-to-use basis, meaning the mark is [probably] not being used in commerce yet, but the applicant has a bona fide intention to use it on the listed goods and services in the near future. TMEP 1101; 15 U.S.C. 1051(b).

The original THE FAMILY VALUES TOUR trademark registrations (now dead) were filed back in 1998 and 2003. Those registrations covered the exact same goods and services listed above and were owned by an entity called Family Values Tour, LLC.

While these new trademark applications do not guarantee THE FAMILY VALUES TOUR is coming back, the intent-to-use basis of the applications does suggest some sort of plans to bring the tour back are in the works.

Thursday, August 25, 2016

Oakland Raiders File Multiple Trademark Applications for LAS VEGAS RAIDERS

Just days before Senator Harry Reid voiced support for a new football stadium that could bring the Oakland Raiders to Las Vegas, The Oakland Raiders limited partnership filed three federal trademark applications for LAS VEGAS RAIDERS covering a variety of goods and services. The team filed the applications with the U.S. Patent and Trademark Office on August 20th.
Some of the goods and services covered by these applications are:
  • "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 and radio; arranging and conducting athletic competitions, namely, professional football games and exhibitions" in Class 041
  • Clothing, footwear, and headwear in Class 025
  • "Downloadable software in the nature of mobile applications for displaying information relating to football exhibitions, football schedules, media guides, and audio and visual recordings relating to football exhibitions; downloadable electronic game software for use on mobile devices, computers, and video game consoles" in Class 009
  • Football helmets in Class 009; and
  • Trading cards in Class 016.
The NFL team filed each application on an intent-to-use basis, signifying the team is not yet using this mark in commerce (obviously), but has a bona fide intention to do so in the near future.

Does this mean the Oakland Raiders are officially moving to Las Vegas? Not necessarily, but it's a step in that direction. As I've blogged about before, the San Diego Chargers filed federal trademark applications for LA CHARGERS before considering a move to Los Angeles earlier this year.

The August 20th applications are the first trademark applications for LAS VEGAS RAIDERS filed by the Oakland Raiders.

Wednesday, August 24, 2016

Paul G. Allen's Vulcan Files Six Trademark Applications Related to Space Travel

Here's a goods/services description you don't see on many federal trademark applications - "[t]ransportation of passengers and/or goods by space travel" in Class 039. But on August 19th, Vulcan Aerospace Corporation filed a trademark application for VULCAN SPACE as it relates to those services. It also filed five more applications on the same day for VULCAN SPACE and VULCANSPACE covering various other space travel-related services.
The other services covered by Vulcan's application include:
  • "Business research services in the field of space, space travel and the space industry; Promoting collaboration within the scientific, research and provider communities to achieve advances in the field of space, space travel and the space industry; Promoting public interest and awareness of space travel" in Class 035; and
  • "Development of new technology for others in the field of space travel; Providing an on-line searchable database in the field of space travel for scientific research purposes" in Class 042.
Vulcan filed applications for VULCAN SPACE and VULCANSPACE in each of these three classes (hence six different applications), although that probably was not necessary (the addition of a space between the words probably does not change the commercial impression of the mark). In other words, a registration for VULCAN SPACE would likely prevent another from registering VULCANSPACE for related services because the marks are so similar. See TMEP 1207.01(b)(ii). But if you're a company getting into the private space travel business, I doubt you're worried about a couple hundred extra dollars in trademark filing fees.

According to my quick research, Vulcan, Inc. is a private company in Seattle, Washington focused on "solv[ing] some of the biggest global issues." It was founded by Microsoft co-founder Paul G. Allen. Vulcan Aerospace, Inc., first announced in April 2015, appears to be a subsidiary focused on space travel.

Tuesday, August 23, 2016

Today's Tip for Saving Your Trademark Filing Fee - Don't File TALKING BOTTLE OPENER for a Talking Bottle Opener

On August 18th, a corporation in California filed a a federal trademark application for TALKING BOTTLE OPENER in Class 021 for "[b]ottle openers." The problem? The mark is merely descriptive of the underlying goods.

Section 2(e)(1) of the Trademark Act prohibits the registration of a merely descriptive term on the Principal Register until it can be shown the term has acquired distinctiveness in the marketplace. A mark is considered merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services. TMEP 1209.01(b). I've blogged about merely descriptive marks many times in the past (like here, here, and here).

The reasoning behind the 2(e)(1) prohibition is fairly simple - if one obtains the exclusive right to use a descriptive term, others will lose the ability to use that descriptive term to describe their goods or services. For example, how would an operator of a car wash describe his or her service if another business owned a trademark registration for the phrase "car wash?" 

Merely descriptive terms are not absolutely barred from registration, however. If a mark acquires distinctiveness, it can be registered on the Principal Register. In general, this means the mark "through usage by one producer with reference to his product, acquire[s] a special significance so that to the consuming public the word has come to mean that the product is produced by that particular manufacturer." TMEP 1212. The burden is on the applicant to claim acquired distinctiveness and submit the corresponding evidence therewith. TMEP 1212.01. The applicant for this mark has not done either.

So is the phrase TALKING BOTTLE OPENER descriptive of a characteristic, function, or feature of a bottle opener that talks when you use it (in this case, sings the USC fight song)? I think so. And when this application is assigned to an Examining Attorney at the U.S. Patent and Trademark Office in approximately three months, I think they will agree and issue an Office Action refusing to register this mark under 2(e)(1) of the Trademark Act. Unfortunately for the applicant, this means its $225 nonrefundable filing fee is all but lost.

Monday, August 22, 2016

Linkedin Files Trademark Applications for LINKEDIN INFLUENCER

Most people who regularly use the professional social networking service LinkedIn have seen a LinkedIn Influencer. It's an invitation only program that recognizes what LinkedIn considers the world's "foremost thinkers, leaders, and innovators." The company is now seeking to protect the term with a federal trademark registration.

On August 17th, the LinkedIn Corporation filed three federal trademark applications for LINKEDIN INFLUENCER. The company filed the applications in three different classes:
  • Class 045 for "[o]nline social networking services, allowing registered users to share information, photos, audio and video content and engage in communication and collaboration between and among themselves, to form groups and to engage in social networking;"
  • Class 041 for "[e]ducation and entertainment services, namely providing online journals and blogs and non-downloadable publications featuring text, graphics, audio and video clips featuring news, information, and commentary on technology, business, education, economics, global issues, environment, self-improvement, entertainment, politics, the humanities, leadership, public policy, philanthropy, and social and cultural issues; electronic publishing services for others; publishing services for others; electronic and online publishing services;" and
  • Class 035 for "[o]nline business networking services; advertising, marketing and promotion services for businesses; promoting the goods and services of others via computer and communication networks; organizing, maintaining and promoting a forum for the exchange of information among businesses, governments, educational institutions and communities through the use of a global computer network; providing business and networking information in the field of personal development, namely self-improvement, self-fulfillment, charitable, philanthropic, volunteer, public and community services, and humanitarian activities[.]"
Despite already using the term on its website, LinkedIn filed these applications on an intent-to-use basis (which typically means an applicant is not yet using the mark in commerce). However, this might be because the company does not have a good specimen showing use of the mark as a trademark in commerce or because it is not yet using the mark in conjunction with some or all of the services listed in the applications.

Specimens are more than a picture or screenshot of the mark. They must show the mark actually functioning as a trademark, which means it is serving as a source indicator for the identified services. TMEP 1301.04(d). For servicemarks (such as LINKEDIN INFLUENCER), an acceptable specimen will actually show the mark and associate it with the services identified in the application. TMEP 1301.04(f). It's also helpful if the mark is shown with the  symbol.

With these recent filings, you may seen updated LinkedIn Influencer content on the website describing the program in more detail (like this) and/or the addition of the ™ symbol whenever the term is used. LinkedIn will need to submit an acceptable specimen for each application before they will fully register. 15 U.S.C. 1051(b) - (c).

Wednesday, August 17, 2016

Lionsgate Files 14 Trademark Applications for LIONSGATE ENTERTAINMENT WORLD

Is Lions Gate Entertainment, Inc. joining Disney and Universal in the amusement park business? Recent trademark applications filed at the U.S. Patent and Trademark Office suggest it might be. On August 12th, the entertainment company filed 14 trademark applications for LIONSGATE ENTERTAINMENT WORLD in standard characters and the design seen below.

Half the trademark applications are for the logo while the other half are for LIONSGATE ENTERTAINMENT WORLD in standard text. Filing an application for the standard character text allows Lionsgate to enjoy protection in the phrase regardless of how it is displayed (i.e. the shape, size, font, or color). Thus, if the logo above ever changes, Lionsgate will still own registrations for the LIONSGATE ENTERTAINMENT WORLD phrase (but it would be smart to file additional applications for the new logo). Additionally, a registration for the logo above provides Lionsgate protection against designs that look similar and are used with related goods/services, even if the other design does not necessarily contain the words LIONSGATE ENTERTAINMENT WORLD.

The goods and services covered by these applications are identical for both the logo applications and standard character mark applications and fall into 7 different classes (hence the 14 applications - Lionsgate filed each application in one class).

Being in 7 different classes, the goods and services covered by these applications are rather broad. The most interesting is a filing in Class 041 for "[a]musement park and theme park services; amusement park services; entertainment in the nature of an amusement park rides...entertainment services in the nature of an amusement park attraction, namely, a themed area..."

Other goods and services covered by these applications include amusement park rides (Class 028), various items of clothing (Class 025), various beverageware (Class 021), luggage and backpacks (Class 018), postcards and posters (Class 016), and computer games and audio/visual recordings of motion pictures and TV shows (Class 009). Taken as a whole, these applications seem to cover amusement park services and a variety of merchandise sold within such parks.

Every application was filed on an intent-to-use basis, meaning Lionsgate is [probably] not using these trademarks yet but has a bona fide intention to do so in the near future.

Will this theme park be in China? The applications indicate that the characters contained in the logo are Chinese. Additionally, two years ago Lionsgate and the Chinese Alibaba Group formed a strategic alliance to launch a "Lionsgate Entertainment World" subscription streaming service in the country. Is this theme park the next step in that alliance?

Monday, August 15, 2016

Evan McMullin Files Trademark Application for Presidential Campaign Logo

Just two days after announcing his independent bid for the White House, Evan McMullin's attorneys filed a federal trademark application for his campaign's logo (see below).
The campaign filed the application in Class 035 for "[p]olitical campaign services, namely, promoting public awareness of Evan McMullin as a candidate for public office; providing online information regarding political issues and the 2016 presidential election." The first use date for the mark is August 8, 2016 (the day Mr. McMullin announced his bid).

According to reports, Evan McMullin is a former CIA agent who thinks Donald Trump is going to lose the election. He is running as an independent candidate.

Given that most trademark applications take about 3 months before they are assigned to an examining attorney at the U.S. Patent and Trademark Office, and that it takes approximately 9-12 months for a trademark to register if all goes well, I doubt this mark will ever make it to registration (and will likely be abandoned by the campaign on a later date).

Tuesday, August 9, 2016

A Pabst Brewing Company Restaurant? Maybe, Based on Recent Trademark Application

Do you love the taste of a cold PBR? Do you think it tastes like George Washington going down your throat to fight the Redcoats? Do you love it so much you wish Pabst had its own restaurant so you could enjoy its food while drinking its beer? If so, you might be in luck.
On August 3rd, the Pabst Brewing Company filed a federal trademark application for PABST in Class 043 for "[r]estaurant services." The company filed this trademark application on an intent-to-use basis, which indicates it is not using the mark in conjunction with these services in commerce yet, but has a bona fide intention to do so in the near future. In other words, the Pabst Brewing Company is potentially considering opening a restaurant under the PABST name.

According to my quick search of the U.S. Patent and Trademark Office database, Pabst Brewing Company owns 271 live trademark applications or registrations, although this one is the first one for PABST as it relates to restaurant services.

Monday, August 8, 2016

Today's Tip For Saving Your Trademark Filing Fee - Avoid Ornamental Use

Not everything can be registered as a federal trademark. Some registrations are refused registration due to statutory bars, such as marks that are likely to cause confusion with pre-existing marks and marks that are merely descriptive, while others simply do not function as trademarks.

Because the U.S. Patent and Trademark Office (USPTO) can only register "trademarks" (i.e. designations that indicate the source of a good or service), it will refuse registration to anything that does not indicate source and therefore does not function as a trademark.
A good example of a mark that is almost certain to be refuse registration for not functioning as a trademark is the mark seen above, filed by an individual in Washington on August 2nd. The goods listed on the application are "[v]inyl static cling decals on which warnings are printed for affixation [sic?] to windows" in Class 016.

Slogans or phrases, such as the one seen above, are generally refused registration as being merely ornamental rather than a trademark because "purchasers will perceive [the goods] as conveying a message rather than indicating the source of the goods." TMEP 1202.03(f)(i).

I commonly see this problem on applications for slogans on t-shirts. Most applicants want to register a big phrase or design on the front of a shirt. But as far as clothing goes, "small, neat, and discrete word[s] or design feature[s] may be likely to create the commercial impression of a trademark, whereas a larger rendition of the same matter emblazoned across the front of a garment...may be perceived merely as a decorative or ornamental feature of the goods." TMEP 1202.03(a). That's why you see companies like Nike and Ralph Lauren place small logos on the breast or arms of shirts.

If you saw a vinyl sticker with the phrase "DON'T BOTHER! EVERYTHING OF VALUE HAS BEEN REMOVED FROM THIS VEHICLE IT'S NOT WORTH IT!" would you perceive that phrase as conveying a message or indicating from whom the sticker originated?

If you said a message, I think you're right. In approximately three months when this application is assigned to an examining attorney in the USPTO, I think they will agree and refuse to register this mark for being ornamental and failing to function as a trademark as required by 15 U.S.C. 1051, 1052, and 1127. Unfortunately for the applicant, that means his $275 nonrefundable filing fee is all but lost.

Friday, August 5, 2016

General Motors Files 3 Trademark Applications Covering Computer Software For Autonomous Driving of Vehicles

On August 1st, General Motors, LLC filed three federal trademarks applications in Class 009 for "[c]omputer software for the autonomous driving of motor vehicles." The company filed all three applications on an intent-to-use basis, meaning the company is probably not using these marks in commerce just yet (but has a bona fide intention to do so sometime in the near future).

The applications are for the C-design seen to the right, the CRUISE-design seen below, and the phrase JOIN THE DRIVERLESS REVOLUTION.

Back in April 2016, GM filed another trademark application for the word CRUISE as it relates to the same software services in Class 009. In June 2016, the company filed an application for SUPER CRUISE in Class 009 for "[c]omputer software, cameras, ultrasonic sensors, global positioning system and radar object detectors for semi-autonomous driving of motor vehicles[.]"

These applications come after GM announced in March that it purchased Cruise Automatic, a San Francisco start-up that develops self-driving technology. Is CRUISE the name of GM's self-driving program? Keep track of these trademark applications to find out.

Thursday, August 4, 2016

Is JUMBO JUICE for Beer Likely to Cause Confusion with JAMBA JUICE for Smoothies?

Trademark applications for beers are some of the most common trademark applications these days. Almost every day multiple applications are filed for the delicious beverage. July 30th was no different. On that day, a brewery in Washington filed a federal trademark application for JUMBO JUICE in as it relates to a variety of beers in Class 032.

Does JUMBO JUICE remind you of a particular smoothie company? Jamba Juice, maybe? Is the similarity enough to cause a likelihood of confusion between the marks? If so, the U.S. Patent and Trademark Office (USPTO) could refuse to register JUMBO JUICE due to Jamba Juice Company's pre-existing registration for JAMBA JUICE in Class 032 for "fruit and vegetable juices, drinks and smoothies[.]"

When determining whether two marks are similar enough to result in a likelihood of confusion, the USPTO will examine the several factors set forth in In re E.I. du Pont Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (C.C.P.A. 1973). Although that case set forth multiple factors, the two key factors are (1) the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression and (2) the relatedness of the goods or services as described in the application and registration(s).

In this case, there's no question that JUMBO JUICE and JAMBA JUICE are very similar in their appearance. The only difference between the marks is one letter. Arguments can be made that the sound and commercial impression are different, but I think this factor would weigh in favor of finding a likelihood of confusion.

However, the key factor in this analysis will be the relatedness of beers and smoothies. In determining whether particular goods or services are related, "[i]t is sufficient that the goods and/or services of the applicant and the registrant are related in some manner or that the conditions surrounding their marketing are such that they are likely to be encountered by the same persons under circumstances that, because of the marks used in connection therewith, would lead to the mistaken belief that they originate from the same source." TMEP 1207.01(a)(i).

What do you think? Would you be confused as to whether JUMBO JUICE is a beer sold by Jamba Juice? 

I don't think so. It's not often you see beer and smoothies marketed together or sold by the same company. These are two distinct types of goods marketed in different ways and under different circumstances. 

While the USPTO has found beer and wine related enough to support a likelihood of confusion (partly because they are both sold in liquor stores), I am not aware of the USPTO drawing the same line between smoothies and beer. Thus, I do not think the USPTO will cite Jamba Juice's registration against JUMBO JUICE.

Tuesday, August 2, 2016

Company in Florida Files Trademark Application for "Life Force Infused" Water

One of the perks of searching the U.S. Patent and Trademark Office's (USPTO's) trademark database almost every day is getting to see a variety of interesting and unusual trademark applications. A federal trademark application filed for LOVE & LIGHT on July 28th by a company in Florida is one of those applications.

The mark itself, LOVE & LIGHT, is not unusual. It is the goods listed in the application that raise an eye. The applicant filed this application in Class 032 for "Bottled Drinking Water infused with life force energy." Life force energy? I'm not sure what that is. But it seems like something a company called "Universal Time Corporation" would file.

So is a trademark applicant allowed to list anything in the "Goods and Services" part of the trademark application? Pretty much. The law only requires that the identification of goods and/or services "be specific, definite, clear, accurate, and concise." TMEP 1402.01.

That being said, to qualify for federal trademark registration, the use of the mark in commerce must be lawful. See TMEP 907. Under 37 C.F.R. §§2.61(b) and 2.69, examining attorneys can require additional information about the goods or services to determine compliance with federal law. If the record indicates that the mark or the goods/services violate federal law, a refusal to register the mark can be made. Applicants for marijuana related services are running into this problem, even if operating in states where marijuana sales are legal, because sale of the plant is still prohibited under the federal Controlled Substances Act, 21 U.S.C. §§801-971.

Is the sale of "life force infused" goods illegal? I don't think so. This applicant previously registered its business name, UNIVERSAL TIME, as it relates to the same life force infused energy water without any issue. Additionally, the USPTO does not "regard apparent technical violations, such as labeling irregularities on specimens, as violations." TMEP 907.

That leaves it up to the consumer to determine if buying "Bottled Drinking Water infused with life force energy" a good investment. I think I'll pass.

Monday, August 1, 2016

OPRAH'S TABLE - Oprah's New Line of Food Products?

Earlier this summer, several websites reported that Oprah Winfrey had filed trademark applications for OPRAH'S related to a variety of food products, suggesting that Oprah would be launching a food line sometime in the future. On July 27th, she took another step in that direction and filed four trademark applications for what might be the actual name of her food line - OPRAH'S TABLE.
The applications were filed by Oprah's Kitchen, LLC and cover a variety of food products, including bottled drinking water, coconut water, and energy drinks (in Class 032); cut flowers, fresh fruits, fresh vegetables, and pet food (Class 031); bakery goods, pasta, and chocolate (Class 030); and almond butter, dairy-based beverages, and soups (Class 029).
Oprah's consent to register these marks, required under 15 USC 1052(c), was submitted with the applications (see above). See also TMEP 1206.

Oprah filed each application on an intent-to-use basis, meaning she is not using the trademarks in commerce yet but has a bona fide intention to do so in the near future. Should the celebrity be successful in registering these marks, she would obtain nationwide rights to the term OPRAH'S TABLE as it relates to a wide range of food products, paving the way for the launch of her potential food line.