Friday, September 30, 2016

The EMOJI Trademark Trend Continues With Application for EMOJI BURGER

It's 2016, so it's only natural that many of the trademark applications filed with the U.S. Patent and Trademark Office these days contain some form of the term EMOJI. In fact, I've blogged about many EMOJI-related trademark applications in the past (like PETMOJI, TRUMPMOJI, EMOJIBALMS, EMOJI BANDAGES, and EMOJI CARDS).

The latest application in this trend appears to be a restaurant near New York City that filed a federal trademark application for EMOJI BURGER on September 26th (this appears to be the name of the restaurant itself).  The restaurant filed the application in Class 043 for "restaurant services" and has been using the mark at least as early as December 18, 2015 (according to the application).

According to my quick search, there are 179 live trademark applications or registrations containing the term EMOJI at the Trademark Office.  Additionally, there appears to be 409 live trademark applications or registrations for marks containing the component -MOJI (like TRUMPMOJI), although some of those applications/registrations overlap with those appearing in the EMOJI search previously mentioned.

Regardless, the EMOJI field of trademarks is getting crowded, which highlights the importance of conducting a trademark search prior to using and filing an application for any mark.

Tuesday, September 27, 2016

Sony Pictures Files Trademark Application for LOS POLLOS HERMANOS

Fans of AMC's Breaking Bad know the infamous Los Pollos Hermanos restaurant well. And although the show ended three years ago, Sony Pictures Television, Inc. (the U.S. distributor of the show according to just took an important step in controlling the use of the fictional restaurant's name on various goods in the form of a federal trademark application.
On September 22nd, Sony Pictures filed a federal trademark application for LOS POLLOS HERMANOS in three different classes:
  • Class 018 for "wallets, phone cases, tote bags, backpacks, duffel bags, briefcases, luggage and umbrellas;"
  • Class 021 for various home items, including mugs, plates, bowls, bottle openers, lunch boxes, and paper cups and paper plates;
  • Class 025 for various clothing items.
Sony Pictures filed this application on an intent-to-use basis. If the application registers, Sony will obtain the exclusive, nationwide right to use the name LOS POLLOS HERMANOS on those goods listed in the application (although it's possible Sony claims broader common law rights in the phrase already).

According to my quick search, this application is the first and only application filed by Sony Pictures for the LOS POLLOS HERMANOS mark.

Friday, September 23, 2016

Amstel Files Trademark Application for AMSTEL XLIGHT

Amstel may be coming out with an even lighter version of its already light beer if a recent trademark application is any indication. On September 19th, the brewery (officially Amstel Brouwerij B.V. besloten vennootschap, according to the trademark application) filed a federal trademark application for AMSTEL XLIGHT (aka "extra light"?) in Class 032 for "beers."
Amstel filed the application on an intent-to-use basis, indicating the company is not yet using the mark in commerce but has a bona fide intention to do so in the near future. Before this mark can fully register, Amstel will need to start actually using the mark (i.e. selling the beer in interstate commerce) and provide sufficient proof of same to the U.S. Patent and Trademark Office.

While an intent-to-use trademark application does not guarantee a mark will eventually be used, it is a good sign that some sort of plans are in the works to use the mark. It is not uncommon for beer makers to file multiple trademark applications for various beer names under consideration.

Monday, September 19, 2016

Chobani Files Frozen Yogurt-Related Trademark Application

Chobani frozen yogurt, anyone? The popular yogurt brand may be moving in that direction if a recent trademark application is any indication.

On September 14th, Chobani, LLC filed a federal trademark application for CHOBANI in Class 030 for "[f]rozen confections; frozen yogurt; frozen yogurt confections." The application was filed on an intent-to-use basis.

While filing a trademark application on an intent-to-use basis does not necessarily guarantee that a mark will be used in conjunction with the listed goods or services, it does indicate that Chobani has a bona fide intention to use this mark in conjunction with frozen yogurt in the near future. This application brings Chobani, LLC's total trademark portfolio to 29 live applications or registrations at the U.S. Patent and Trademark Office.

According to my quick search, Chobani is not currently selling a frozen yogurt product in stores, but may be selling frozen yogurt out of a small shop in SoHo, NYC. Regardless, keep an eye out for Chobani frozen yogurt products in a store near you soon.

Friday, September 16, 2016

Wal-Mart Files 15 Trademark Applications for Member's Mark Logo

Wal-Mart Stores, Inc. had a busy day at the U.S. Patent and Trademark Office on September 12th, filing 15 trademark applications for the logo seen below.

Why 15 applications for the same thing? Each application was filed in a separate class of goods. Because the Trademark Office allows an applicant to file for the same mark in multiple classes, multiple applications for the same mark are not uncommon.
The goods covered by these applications are extremely broad and it appears this is a filing for the Sam Club's Member's Mark logo. Wal-Mart owns registrations for the old "M" logo seen below but, as often happens when a logo changes, the old registrations may not be sufficient to protect the new mark given the differences.
Some of the goods covered by these applications include lace and embroidery (in Class 026), meat, fish, poultry, and game (Class 029), tea and coffee (Class 030), furniture (Class 020), and pharmaceuticals (Class 005).

Given the intent-to-use nature of these applications, Wal-Mart will need to actually start using this logo in commerce in conjunction with these products for the mark to actually register in that class. Wal-Mart filed similar "M" applications in even more classes on September 9th.

According to my quick search, these new applications bring Wal-Mart's total trademark portfolio at the Trademark Office to 826 live applications or registrations.

Tuesday, September 13, 2016

Zipcar Files Trademark Applications for ZIPBIKE

The popular car sharing service Zipcar may be moving into bike sharing if recent trademark applications are any indication.

On September 8th, Boston-based Zipcar, Inc. filed two federal trademark applications in Class 039 for "Bicycle sharing services; vehicle sharing services, namely, providing temporary use of bicycles." One application was for the word ZIPBIKE while the other was for the logo seen to the right. The company filed both applications on an intent-to-use basis, which indicates Zipcar has a bona fide intention to use these marks in conjunction with the services listed in the applications in the near future.

These are the first bike-related trademark applications filed by Zipcar, Inc. The company does have a federal trademark registration for the logo seen above covering its motor vehicle sharing services, along with several other applications or registrations related to its car sharing service.

Monday, September 12, 2016

NBA Files 14 Trademark Applications Related to 2017 All-Star Game

September 7th was a busy day at the U.S. Patent and Trademark Office for NBA Properties, Inc. On that date, just one day before the NBA announced the new All-Star game logo, NBA Properties filed 14 trademark applications for various 2017 All-Star Game related logos (seven logos total - each logo was filed in two classes).

The NBA filed each application on an intent-to-use basis, which means the league is probably not using the marks in commerce yet, but has a bona fide intention to do so in the near future (which makes sense given the game is not until next year).

The goods and services covered by these 14 applications are broad. Some of those goods and services include entertainment and educational services in the nature of ongoing television and radio programs in the field of basketball and rendering live basketball games, coaches clinics and camps, video stream recordings, online games, and online publications (all in Class 041) and a variety of clothing in Class 025.

According to, New Orleans was selected as the site of the 2017 NBA All-Star game a couple weeks ago. The game will be played on Sunday, February 19 at the Smoothie King Center (home of the New Orleans Pelicans).

Thursday, September 8, 2016

Today's Tip for Saving Your Trademark Filing Fee - Avoid Descriptive Marks

I've blogged about it many times before. Descriptive words and phrases are weak trademarks and cannot be registered with the U.S. Patent and Trademark Office, on the Principal Register at least, without acquiring distinctiveness (which isn't that easy). 15 U.S.C. 1052(e)(1); 15 U.S.C. 1052(f).

Descriptive terms do not typically serve as source indicators (aka trademarks) but rather describe the underlying goods or services (which, in theory, everybody should be allowed to do without risking infringement).
Consider the federal trademark application for COOLING MATTRESS PAD filed by a company in Pennsylvania on September 3rd. The company filed this application in Class 024 for "[b]ed sheets, fitted bed sheet covers, bed flat sheets, and pillow cases used in the bedding, health care, home-health care and nursing home industries made of biodegradable film created from renewable bio-polymer resources."

Is COOLING MATTRESS PAD merely descriptive of the underlying goods? Possibly. 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).

Therefore, if the bed sheets, bed sheet covers, and/or pillow cases sold under the COOLING MATTRESS PAD mark have cooling features, this application will likely receive a refusal under Section 2(e)(1) of the Trademark Act for being merely descriptive of the underlying goods. Whether these goods actually have a cooling feature is unclear from the description, so the Examining Attorney who reviews this application will likely request additional information. TMEP 814.
In any event, the applicant will need to correct the specimen it submitted with the application. A specimen shows the manner in which the mark is seen by the public. TMEP 904. For goods, a good specimen typically shows the mark on the goods labels, tags, or commercial packaging. See TMEP 904.03.

The applicant, however, only submitted the text seen above. The Examining Attorney should give the applicant an opportunity to submit a substitute specimen, which must have been being used in commerce at least as early as the filing date.

If the Examining Attorney does refuse registration of this application for being merely descriptive (or any other reason), and the applicant cannot overcome the refusal, the applicant's $225 nonrefundable filing fee will be lost.