Vince McMahon's Alpha Entertainment, LLC Files Five New Trademark Applications for XFL

A couple days ago, David Bixenspan of Deadspin reported on rumors surrounding Vince McMahon's vision to bring back the XFL, a football league that operated as a joint venture with the WWE and NBC that that played one season in 2001. In that article, Mr. Bixenspan reported that the WWE confirmed Vince McMahon formed an entity called Alpha Entertainment "to explore investment opportunities across the sports and entertainment landscapes, including professional football." On December 16th, it appears Alpha Entertainment, LLC took additional steps in that direction.

On that date, Alpha Entertainment, LLC filed five trademark applications for XFL with the U.S. Patent and Trademark Office. And yes, they are related to professional football.

The core application for XFL covers "Entertainment services in the nature of professional football games and exhibitions" and "arranging and conducting athletic competitions, namely, professional football games and exhibitions," among other services in Class 41.

The other four applications cover a variety of ancillary goods/services, such as merchandise, including:

• A variety of toys and sporting goods (Class 28);
• Posters, calendars, pictorial prints, series of books relating to football, and other paper-related goods (Class 16);
• Jewelry, watches, earrings, rings, and other accessories (Class 14); and
• Downloadable software in the nature of mobile applications for displaying information relating to football exhibitions, football schedules, media guides, audio and visual recordings relating to football, DVDs featuring the sport of football, motion picture films in the nature of football, and video games and computer game software, among other things (Class 9).

Alpha Entertainment, LLC filed each application on an intent-to-use basis, suggesting it is not using XFL in conjunction with the listed goods and services yet (which makes sense considering the league isn't active) but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). Before the USPTO will register these XFL marks, Alpha Entertainment will need to start using the marks in conjunction with the listed goods and services and submit sufficient proof of same to the USPTO. See TMEP 1103.

Back in September, Alpha Entertainment, LLC filed two identical applications (not sure why) for URFL covering goods similar to those listed in XFL application filed in Class 9. According to my quick search, those two URFL applications, and the five XFL applications described above, are the only federal trademark applications that have been filed by Alpha Entertainment, LLC.

Interestingly, World Wrestling Entertainment, Inc. also owns three pending trademark applications for XFL (none of those have yet registered, however). The WWE's applications also cover entertainment services (albeit primarily related to wrestling) as well as a variety of clothing items. Because those XFL applications are owned by a separate entity, the USPTO may refuse to register Alpha Entertainment, LLC's XFL applications under Section 2(d) of the Trademark Act if the USPTO deems the underlying goods and services to be related. See TMEP 1207 et seq. In other words, the USPTO doesn't register marks that are confusingly similar to previously filed marks, so the WWE's XFL applications might prevent the registration of Alpha Entertainment, LLC's XFL marks.

We'll find out in approximately three months whether the WWE's pending XFL applications block Alpha Entertainment, LLC's XFL applications. If so (and maybe even regardless), Alpha Entertainment and the WWE will need to determine who owns the XFL mark. Stay tuned. 

Is Reading Rainbow Coming Back as Reading Rainbow 2.0? WNED Files Trademark Applications for READING RAINBOW 2.0, 7 Other Reading Rainbow-Related Marks

Reading Rainbow, the classic children's television that aired for twenty years through the 1980's, 90's and early 00's, may be making a comeback as Reading Rainbow 2.0, if recent trademark applications are any indication.

On December 8th, the Western New York Public Broadcasting Association (WNED) filed federal trademark applications for READING RAINBOW 2.0 and seven other Reading Rainbow-related trademarks with the U.S. Patent and Trademark Office.

The applications filed by WNED last Friday are for:

• READING RAINBOW 2.0
• I CAN GO ANYWHERE
• TAKE A LOOK, IT'S IN A BOOK
• GO ANYWHERE. BE ANYTHING.
• BUTTERFLY IN THE SKY
• RR

In addition to the standard character mark applications above (meaning those applications cover only the words, not a particular design), WNED filed two more applications, one for each design seen below:

The goods and services covered by these applications vary slightly, but all appear to be related to the television show. For example, most of the applications cover "Audio materials in the fields of education and teaching" in Class 9. The READING RAINBOW 2.0 application covers "Entertainment services, namely, creation and distribution of a TV series" (Class 41) and "Providing a website featuring streaming of audio and video material on the Internet" (Class 38).

WNED filed all of these applications on an intent-to-use basis, suggesting (but not necessarily meaning) it is not yet using these marks in commerce in conjunction with the goods and services but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b).

WNED owns several other registrations for READING RAINBOW, including registrations covering the distribution of a TV series and related merchandise. According to the Reading Rainbow website (operated by WNED), WNED recently resolved legal disputes with the previous host and executive producer of Reading Rainbow (LeVar Burton) and is "currently working on the next chapter of Reading Rainbow and will continue its mission of fostering education for a new generation." 

Is the next chapter Reading Rainbow 2.0? Pay attention to these trademark applications to find out.

Law Firm Files Applications to Register #METOO and #METOO CLAIMS as Trademarks for Legal Services

As I've blogged about before, it is not uncommon to see a rush of trademark applications for various words or phrases circulating in the media. For example, back in June I blogged about a swarm of trademark applications for COVFEFE.

Most recently, it seems a law firm is seeking to capitalize on the #METOO social media campaign highlighting those who have come forward with stories of sexual harassment and assault. The #METOO campaign is associated with "The Silence Breakers," who Time Magazine just recognized as the 2017 Person of the Year.

On December 1st, the Virginia law firm filed two federal trademark applications - one for #METOO and the other for #METOO CLAIMS, both in Class 45 for "legal consultation services." The firm filed the applications on an intent-to-use basis, suggesting it is not currently using these phrases as trademarks in conjunction with the listed services yet but has a bona fide intention to do so in the near future, so not much else can be gleaned from the applications. However, before these marks can register, the law firm must start using them as trademarks and submit sufficient proof of the same to the U.S. Patent and Trademark Office. TMEP 902.

According to my quick search, two other trademark applications for #METOO have been filed since late October - one covering fragrances and cosmetics and the other covering rubber or silicone wristbands. I would not be surprised to see more filed in the future.

Amy Schumer Files First Applications to Register Her Name as a Trademark

Amy Schumer, a stand-up comedian, writer, actress, and producer, recently filed what appear to be the first applications to register her name as a federal trademark. On November 23rd, Muffin Schumer, Inc. (which appears to be a holding company for Amy's trademarks) filed two federal trademark applications for AMY SCHUMER with the U.S. Patent and Trademark Office.

One AMY SCHUMER application covers "Entertainment services in the nature of live visual and audio performances, namely, musical, variety, news and comedy shows" in Class 41. The other covers "sweat shirts; t-shirts" in Class 25. According to the applications, Amy has been providing entertainment services at least as early as June 29, 2007. The application in Class 25 indicates she is not yet selling sweat shirts and t-shirts but has a bona fide intention to do so in the near future.

How do we know these applications are affiliated with the real Amy Schumer? Besides the fact that both applications were filed by a company that appears to be associated with Amy Schumer, the comedian also submitted her written consent to the use and registration of her name as a trademark (seen above). Section 2(c) of the Trademark Act requires this written consent when one seeks to register a name, portrait, or signature of a particular living individual as a trademark. See also TMEP 1206 et seq.

According to my quick search, these are the first applications for Amy Schumer's name (as I've blogged about before, it is not uncommon for celebrities and athletes to file applications to register their names as trademarks). However, Muffin Schumer, Inc. did recently obtain a registration for PLUS SIZE BRAIN covering "sweat shirts." Another application for PLUS SIZE BRAIN covering shirts and t-shirts is currently pending.

Alexander Wang Files Application to Register Fanny Pack Design as a Trademark

On November 16th, AW Licensing, LLC (which appears to be Alexander Wang's trademark holding company and owns several ALEXANDER WANG trademark registrations) filed a federal trademark application with the U.S. Patent and Trademark Office for the fanny pack design seen below (ed. - are fanny packs back in?). AW Licensing filed the application in Class 25 for "fanny packs." According to the application, Alexander Wang has been selling these fanny packs since December 15, 2016.

The application describes the trademark as "a five-zipper and chain design on a fanny pack." Note that the dotted lines help show where the trademark appears on the product but are not actually considered part of the mark. TMEP 1202.02(c)(i)(B). In other words, this application does not cover the entire fanny pack, just the placement of the chain and zippers. The specimen of use submitted with the application, showing how this fanny pack appears to consumers, is below.

Technically, this application is for "trade dress," which is generally defined as the "total image and overall appearance of a product" and "may include features such as size, shape, color or color combinations, texture, [and] graphics." TMEP 1202.02; Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 764 n.1 (1992). As I've blogged about before, trade dress can be registered if it is (1) non-functional and (2) inherently distinctive or has acquired distinctiveness in the marketplace.

Generally, trade dress is functional if it is "essential to the use or purpose of the article or if it affects the cost or quality of the article." TMEP 1202.02(a);  Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 165 (1995) (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 850, n.10 (1982)). In considering whether trade dress is functional, the following factors are considered:

• the existence of a utility patent that discloses the utilitarian advantages of the design sought to be registered;
• advertising by the applicant that touts the utilitarian advantages of the design;
• facts pertaining to the availability of alternative designs; and
• facts pertaining to whether the design results from a comparatively simple or inexpensive method of manufacture.

TMEP 1202.02(a)(v).

If the trade dress is not functional, it must be inherently distinctive or have acquired distinctiveness in the marketplace. TMEP 1202.02(b). In a 2000 Supreme Court case, the Supreme Court stated that trade dress related to product designs (such as this fanny pack), as opposed to trade dress for product packaging, is never inherently distinctive. Wal-Mart Stores, Inc. v Samara Bros., 529 U.S. 205, 215 (2000). Proving acquired distinctiveness, at least in the product design context, requires a great deal of evidence that shows the product design identifies not only the goods, but the source of those goods. See TMEP 1212  et seq. In other words, Alexander Wang will need to convince the Trademark Office that when consumers see the "five-zipper and chain design" on a fanny pack, they recognize that fanny pack as an Alexander Wang fanny pack.

What do you think? Is the five-zipper and chain design essential to the use or purpose of the fanny pack? Does it affect cost or quality? Does Alexander Wang tout the utilitarian advantages of five zippers? Are there other alternatives for designing a fanny pack? If the design is not functional, do you recognize Alexander Wang as the designer when you see this fanny pack because of the zipper and chain design?

We'll see what the Trademark Office thinks in approximately three months when this application is assigned to an examining attorney.

Trademark Application for Design of Cryptocurrency "Boomcoin" Filed

Led by the surge of BitCoin, cryptocurrency seems to be all over the news lately. It's no surprise, then, that those hoping to cash in on the trend (no pun intended) are also filing cryptocurrency-related trademark applications.

One of the latest trademark applications, filed with the U.S. Patent and Trademark Office on November 15th by a "Mr. Kofi" in Malibu, California, is for the design of the "Boomcoin" seen below.

The application describes the trademark as consisting "of the wording BOOMCOIN in rose gold and gold. A depiction of two coins and a microphone sits on top of the B in the middle of each coin. One coin consist of two colors, rose gold and white in the middle. The other coin is solid gold."

Mr. Kofi filed this application in Class 36 for the following services:

We provide financial services, namely, providing a decentralized and open source crypto-currency on a global computer network utilizing a blockchain. We provide financial advice; Financial affairs and monetary affairs, namely, financial information, management and analysis services; Financial analyses; Financial consultancy; Financial consultation; Financial credit scoring services; Financial forecasting; Financial information and evaluations; Financial information processing; Financial trust administration; Financial trust operations; Financial valuations; Banking and financing services; Cash and foreign exchange transactions; Conducting financial feasibility studies; Currency exchange services; Currency trading; Electronic funds transfer by telecommunications; Electronic transfer of funds; Electronic transfer of money; Electronic transfers of money; Exchanging money; Financial management via the Internet; Financial research and information services; Foreign exchange information services; Issue of tokens of value; Monetary exchange operations; Money exchange services; On-line real-time currency trading; Pawnbrokerage; Providing financial information; Provision of financial information; Surety services; Trustee services.

Note that the USPTO may require the applicant to clean up this description of services, particularly those at the beginning. TMEP 1402.01 states "[t]he identification of goods and/or services must be specific, definite, clear, accurate, and concise." Extraneous wording like "we provide" should be omitted.

According to the application, Mr. Kofi has been providing the listed services under this mark at least as early as January 1, 2013. However, the specimen submitted with the application, seen below, does not appear to show the mark as it is used in conjunction with the advertising or rendering of the listed services.

Acceptable specimens of use for services marks are those "(1) showing the mark used or displayed as a service mark in the sale of the services, which includes use in the course of rendering or performing the services, or (2) showing the mark used or displayed in advertising the services, which encompasses marketing and promotional materials." TMEP 1301.04. Those specimens may include "newspaper and magazine advertisements, brochures, billboards, handbills, direct-mail leaflets, menus (for restaurants), press releases that are publicly available (e.g., on the applicant’s website), and the like." Id.

According to my quick search, approximately 378 cryptocurrency-related applications have been filed with the USPTO and about 315 are currently active.

Kanye West Files Four Trademark Applications for YEEZY SOUND...Is It a New Record Label, Streaming Music Service, or Something Else?

Whatever Kanye West's plans are for YEEZY SOUND, they appear to be big (at least according to four recent trademark applications filed for the name). On November 2nd, Mascotte Holdings, Inc. (a holding company for Kayne's trademarks), filed four applications to register YEEZY SOUND [standard characters] as a federal trademark.

Kayne's holding company filed each application in a different class of goods or services (hence the four applications) and the goods and services covered by these application are extremely broad. Some of the standouts include:

• Streaming of music, audio, images, video and other multimedia content over the internet, mobile devices, wireless networks and other computer networks and electronic communications networks (Class 38);
• Record production; music production; audio recording and production; videotape production; motion picture song production; production of video discs for others; recording studios (Class 41);
• Downloadable musical sound recordings; downloadable video recordings featuring music (Class 9); and
• Retail stores, wholesale stores, mail order services, on-line ordering services and on-line retail store services, and retail store services available through computer communications and interactive television, all of the aforesaid featuring recorded product, music related items, audio-visual products, computer goods, software and games (Class 35)

The applications cover a number of other interesting goods and services, like "virtual reality game software," management of performing artists and talent agencies, "broadcasting of cable television, television and radio programs," and "motion picture film production."

All these applications were filed on an intent-to-use basis, suggesting Kayne is not using these trademarks in commerce yet, but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). Before these applications can mature into registrations, Kayne must start using the mark with the listed goods and services and submit sufficient proof of same to the U.S. Patent and Trademark Office. See TMEP 1103.

According to my quick search, these are the first applications for YEEZY SOUND filed by Mascotte Holdings, Inc. and are four of the eight applications filed by the holding company with the USPTO this year. Earlier this year, Mascotte Holdings filed applications for YEEZY (various clothing items), WAVE RUNNER (flip flops, sandals, shoes), and two applications for CALABASAS CLOTHING (various clothing items and bags).

So are the YEEZY SOUND applications related to a new streaming music services, record label, retail stores, or something else? Pay attention to these applications to find out.

Despite Recent Claims He is Not Running, Kid Rock Files Trademark Application For KID ROCK FOR SENATE

Despite claiming on October 24th that he is not running for Senate in 2018, on October 26th Robert J. Ritchie (that's Kid Rock's real name) filed a trademark application for KID ROCK FOR SENATE with the U.S. Patent and Trademark Office. This appears to be the first application for KID ROCK FOR SENATE filed by Robert J. Ritchie and the only trademark application filed by him in 2017.

The application covers a few broad goods and services that will likely need to be clarified further before this application can register:

• Paper goods and printed matter (Class 9);
• Entertainment services (Class 41); and
• Clothing (Class 25).

Kid Rock filed this application on an intent-to-use basis, suggesting he is not currently using this mark with the listed goods and services but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). Before this application can fully register, and assuming there are no other issues with it, Kid Rock will need to actually start using this trademark with the listed goods and services and submit sufficient proof of such use to the Trademark Office. TMEP 902; TMEP 904.

How do we know this Robert J. Ritchie is actually Kid Rock? Despite the fact that the mark references Kid Rock, there are a couple other indicators: (1) the address listed in the application (a Tequesta, Florida P.O. box) appears to coincide with Kid Rock's charity and is the same address listed in Kid Rock's AMERICAN BADASS BEER COMPANY and KID ROCK trademark registrations and (2) the attorney listed in this application is the same attorney listed in many other Kid Rock trademark applications and registrations, including the registration for KID ROCK.

Is Kid Rock actually running for Senate or is this just a publicity stunt? Notably, this trademark application does not include "political campaign services," which is often included in trademark applications for political campaigns, such as the application for Evan McMullin's logo I blogged about last year. Therefore, unless and until Kid Rock further clarifies the goods and services listed in this application, submits specimens showing use of this trademark, and/or files a new application that covers political campaign services, we may have to take his word that he is not actually running for Senate in 2018. Bummer?

Is This Recent Trademark Application for Bartending Robots?

On October 25th, a company called Lush Robotics, Inc. filed a federal trademark application with the U.S. Patent and Trademark Office for LUSH [standard characters] covering a variety of goods and services that appear to be related to robots (and possibly bartending robots).

The goods and services covered by this futuristic application are:

• Entertainment services, namely, appearances by robots; providing bartending services (Class 41);
• Beverage preparation machines; industrial robots (Class 7); and
• Computer programs, downloadable computer programs and mobile device software for control of intelligent robot, for beverage, snack and food mixing, for conducting financial transactions, for image recognition, for communicating with other users, for sending beverages and redeemable credits to other users and for social networking (Class 9).

Bartending robots? Or just a fancy vending machine? Unfortunately, this application does not give us much more detail.

Lush Robotics filed the application on an intent-to-use basis, suggesting it is not currently providing these goods/services under the LUSH mark but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). Therefore, Lush Robotics did not need to submit any specimens showing how this trademark is being used in commerce, which would have shed some more light on these goods and services. TMEP 904. However, Lush Robotics will need to eventually submit acceptable specimens if it desires a registration for this mark. TMEP 902.

According to my quick search, Lush Robotics, Inc. does not even have a website, although the trademark application indicates they are a Delaware corporation located in Palo Alto, California. This appears to be the first trademark application filed by the company with the USPTO.

Apple Files Application to Register iPhone X's "FACE ID" as a Trademark. Will it Obtain a Registration?

Apple's new iPhone X comes with a facial recognition feature that unlocks the phone simply by scanning the owner's face (although the accuracy has come under some fire lately). That feature is call the Face ID, and Apple just filed a federal trademark application for the name.

The trademark application for FACE ID, which Apple filed on October 23rd, is for the stylized version of the name seen above. The application covers:

Computer hardware and software for secure biometric authentication, and password management and protection for use on computers, handheld mobile digital electronic devices and mobile telephones

in Class 9 and was filed on an intent-to-use basis (which suggests Apple is not using this as a trademark yet, but has a bona fide intention to do so in the near future - likely because pre-orders for the iPhone X didn't start until October 27th). Interestingly, Apple also claims a priority date of April 24, 2017 based on a trademark application it filed for this same mark in Liechtenstein. Claiming priority based on a foreign application is permitted under Section 44(d) of the Trademark Act. See also TMEP 1003.

Can Apple obtain a registration for FACE ID on the U.S. Patent and Trademark Office's Principal Register though? To obtain such a registration, Apple will need to show, among other things, that FACE ID is not merely descriptive of the listed hardware and software for secure biometric authentication.

A trademark 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). For example, BED & BREAKFAST REGISTRY was held merely descriptive of lodging reservation services. In re Bed & Breakfast Registry, 229 USPQ 818 (Fed. Cir. 1986). Merely descriptive trademarks can be registered on the Principal Register if they become distinctive of the applicant's goods or services in the marketplace, but that is nearly impossible to show if a trademark was only recently adopted. TMEP 1212 et seq.

Assuming Apple obtains a registration for FACE ID on the Principal Register, it would have the exclusive, nationwide right to use that term in conjunction with computer hardware and software for secure biometric authentication (subject only to those who may have acquired trademarks rights in this term for the same or related goods prior to Apple's application). If it must amend this application to the Supplemental Register (which I call the minor leagues of trademark registrations) because the Trademark Office deems FACE ID merely descriptive, it would not obtain those exclusive, nationwide rights. TMEP 801.02(b); 15 USC 1094.

So, is FACE ID merely descriptive of computer hardware and software for secure biometric authentication? That will be up to the attorney at the Trademark Office assigned to this application (and perhaps eventually the Trademark Trial and Appeal Board and a federal court) to decide.

According to my quick search, this is the first trademark application for FACE ID filed by Apple and the 47th trademark application filed by the company in 2017.

Is This Trademark Application for ALMOND BUTTER Merely Descriptive or Generic? Not So Fast...

As I've blogged about before, the U.S. Patent and Trademark Office will not register (on the Principal Register at least) trademarks that are merely descriptive without a showing of acquired distinctiveness in the marketplace. 15 USC 1052(e)(1). Merely descriptive trademarks describe "an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services" and the law prefers that these descriptive designations remain free for all to use, at least until the relevant consuming public starts to associate that designation with a particular product or service. TMEP 1209.01(b). Generic terms, which are primarily understood to be the common or class name for particular goods or services, are never registerable as trademarks. TMEP 1209.01(c).

So will the USPTO register the mark ALMOND BUTTER (standard characters) filed by Slippery Squid, LLC on October 18, 2017? It's a descriptive, or possibly even generic, word combination, right? Not so fast. It all depends on the underlying goods or services, which in this case are described as "Audio recording and production; Entertainment services in the nature of live musical performances; Music publishing services; Presentation of musical performances; Production of sound and music video recordings." Is ALMOND BUTTER descriptive or generic for audio recording, music publishing, and music performances? Probably not (unless maybe the music is about almond butter).

In this case, ALMOND BUTTER is likely an arbitrary trademark because it has nothing to do with the underlying music services. Arbitrary trademarks "comprise words that are in common linguistic use but, when used to identify particular goods or services, do not suggest or describe a significant ingredient, quality, or characteristic of the goods or services." TMEP 1209.01(a). APPLE for computers is a good example of an arbitrary trademark. Arbitrary marks are much stronger than descriptive trademarks and therefore typically enjoy a greater degree of protection. Such marks can also be registered on the Principal Register without a showing of acquired distinctiveness.

This ALMOND BUTTER application is a good example of two important trademark concepts - (1) merely descriptive trademarks are weak, more difficult to register, and should be avoided, if possible and (2) the underlying goods and services play an important role in determining a trademark's strength (use of a word on some goods may be generic while use of the same word on other goods may be arbitrary).

In sum, had this application covered "almond butter" rather than music services, the applicant would have been in trouble. However, because the underlying services [probably] have nothing to do with almond butter, the risk of a refusal for being generic or descriptive is probably not likely (although there are several other issues that could prevent registration, such as creating a likelihood of confusion with a mark in a previously filed application or registration).

Dwanta Claus is Coming - Dwayne "The Rock" Johnson Files Trademark Application for DWANTA CLAUS

Dwanta Claus, Dwayne "The Rock" Johnson's holiday alter ego, may be a registered trademark soon. On October 12th, DJIP, LLC (the same entity that owns a trademark registration for DWAYNE JOHNSON) filed a federal trademark application with the U.S. Patent and Trademark Office for DWANTA CLAUS.

The application covers a massive amount of goods and services, including many of the goods and services for which The Rock is known, including:

• Entertainment in the nature of live performances by a sports, film and entertainment celebrity (Class 41);
• Entertainment services, namely, personal appearances by a sports and film celebrity (Class 41);
• Charitable services, namely, providing sporting goods to underprivileged children (Class 41);
• Consulting services in the fields of fitness and exercise (Class 41);
• A variety of toys and athletic equipment (Class 28);
• A variety of clothing and apparel items (Class 25);
• Series of books, magazines and written articles in the field of entertainment, general interest, health, nutrition, sports, fitness, athletics, exercise, film, television, celebrity news and information, sports news and information; address books (Class 16); and
• Pre-recorded CDs and DVDs featuring entertainment films, health, nutrition, sports, athletics, exercise, instructional content regarding exercise, fitness, motivation and self-improvement, television, celebrity news and information, motivation and self-improvement information, sports news and information, and music (Class 9).

The application was filed an on intent-to-use basis, suggesting (but not necessarily meaning) that The Rock is not using DWANTA CLAUS in conjunction with the listed goods and services yet, but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). Before this application can mature into a registration, he must provide evidence to the Trademark Office that he is using the mark with the listed goods and services. See TMEP 1103.

According to my quick search, this is the first application for DWANTA CLAUS filed by Dwayne Johnson (or, more appropriately, the legal entity that appears to hold his trademarks). Apparently the actor has been using the term "Dwanta Claus" for quite some time, including when he gave away a car last year, when he visited a sick teen in the hospital, and when he read his "Twas the Night Before Rockmas" on YouTube.

Given the expansiveness of this trademark application, it doesn't look like The Rock plans to give up this phrase anytime soon. Expect to hear more from Dwanta Claus this holiday season.

CBS Files Trademark Application for $1

No, I'm not talking about the filing fee to the U.S. Patent and Trademark Office (that was $275 per application). I'm talking about the actual mark CBS wants to register.

On October 11th, CBS Studios, Inc. filed two federal trademarks application for "$1" in standard characters (meaning the registration sought covers only the text, not a specific stylized version - see TMEP 807.03).

One application covers "Digital media, namely, pre-recorded digital video discs, digital versatile discs, DVDs, downloadable audio and video recordings, and high definition digital discs featuring drama; Downloadable television programs featuring drama provided via a video-on-demand services" in Class 9.

The other application covers, in Class 41:

Entertainment services in the nature of a television and multimedia series featuring drama distributed via various platforms across multiple forms of transmission media; Providing non-downloadable entertainment television programs featuring drama via a video-on-demand services; providing information in the field of entertainment via the Internet and portable and wireless communication devices

A TV show called $1? Maybe. CBS filed this application on an intent-to-use basis, suggesting it is not currently using this trademark in commerce in conjunction with the listed goods and services, but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). Although this is not a guarantee CBS will release a television series titled $1, it is supposed to be a guarantee that something is in the work for such a show.

According to my quick search, these are the first trademark applications for "$1" filed by CBS. CBS Studios currently owns 374 other live trademark applications or registrations with the USPTO.

The Simpsons Production Company Files Applications to Register Closing Credits Animation, Sound as Trademarks

Recognize the closing credits scene below? Can you hum the jingle that accompanies it?

This animated scene appears at the end of The Simpsons, and other shows produced by James L. Brooks' Gracie Films. The film and television production company (or, more specifically, the Trustee(s) of The Brooks Family Trust) just filed federal trademark applications for the logo (seen below), animation, jingle accompanying the animation, and the words GRACIE FILMS and JAMES L. BROOKS.

The Brooks Family Trust filed each of these applications on October 5th and, with the exception of the JAMES L. BROOKS application, all the applications cover entertainment services in the field of film and television, namely, the creation, production and distribution of motion picture films, television programs and animation in Class 41 and claim a first use date of 1984. The JAMES L. BROOKS application covers "Entertainment services, namely, director, producer, and screen writing services for motion picture films and television programming" and claims a first use date of 1965.

As these applications demonstrate, and as I've blogged about before, it is possible for trademarks to take the form of something other than a name or a logo (in this case, a sound and an animation). Sound marks, for example, can "function as source indicators when they 'assume a definitive shape or arrangement' and 'create in the hearer’s mind an association of the sound' with a good or service." TMEP 1202.15. You can listen to the sound covered by the sound mark application here. Is this a familiar arrangement that creates an association with a particular good or service in your mind?

Shorts clips or animations can also function and be registered as trademarks. HBO, for example, obtained a registration for its iconic opening and closing scene. The motion must actually identify and distinguish the goods/services and indicate their source. To identify the motion mark, the applicant must submit to the Trademark Office a drawing that "depicts a single point in the movement, or...a square drawing that contains up to five freeze frames showing various points in the movement, whichever best depicts the commercial impression of the mark" along with a "detailed written description of the mark." TMEP 807.11.

For this motion mark application, the Trustee(s) of the Brooks Family Trust submitted the drawing above and described the mark as "a computer generated sequence showing movie goers in a darkened movie theater watching a projection of a film with the words "GRACIE FILMS" on the movie screen."

These Gracie Films-related trademark applications are a great example of the different types of marks that may be registered with the U.S. Patent and Trademark Office. These five applications cover standard character (word) marks, design marks (i.e., logos), sound marks, and motion marks. While the procedural hurdles for obtaining registrations for sound and motion marks can be a little more complex, such registrations are certainly possible.

Quarterly Index (7/1/17 - 9/30/17)

Entertainment Trademark Filings:

• Jake Paul Files Applications to Register JAKE PAUL, IT'S EVERYDAY BRO as Trademarks [9/13/17]
• 10 Trademark Applications for JURASSIC WORLD: FALLEN KINGDOM Filed By Universal City Studios/Amblin' Entertainment [9/12/17]
• Are Rocky and Bullwinkle Coming Back? Five Recent Trademark Applications Hint at Return [9/6/17]
• Is Reddit Changing Its Logo? Multiple Trademark Applications for New Design Recently Filed [8/30/17]
• TINKERBELLE THE DOG Trademark Application Filed For "Modeling" and "Personal Appearances by a Social Media Celebrity" [8/8/17]
• Amid Controversy, HBO Files Trademark Applications for CONFEDERATE [7/26/17]
• Warner Bros. Files Applications to Register Hufflepuff, Gryffindor Emblems as Trademarks [7/21/17]
• JAY Z's Company Files 15 Applications to Register JAYBO as a Trademark [7/11/17]

Sports Trademark Filings:

• Rashad Jennings Files Application to Register His Signature as a Trademark [9/1/17]
• FIFA Files Application to Register "USA 2026" as Trademark [8/28/17]

Food and Drink Trademark Filings:

• The Ritz-Carlton Files Trademark Application Covering "Caviar" [9/20/17]
• 24 Beer-Related Trademark Applications Filed in Single Day as Beer Field Gets More and More Crowded [9/11/17]
• There's a "Society of Beer Drinking Ladies" and it Just Filed Trademark Applications for its Name & Logo [8/24/17]
• Is the Halo Top Product Line Expanding? Trademark Applications for Ice Cream Bars, Yogurt, Custard Filed [8/11/17]
• Is this Bud for Lunch? Anheuser-Busch Files Trademark Application for LUNCH BEER [8/4/17]
• Are JALAPENO MAC BITES Merely Descriptive of Macaroni and Cheese Bite Sized Nuggets Filed with Jalapenos? [7/24/17]

Other Unique Filings:

• Vacuum Maker Dyson Files Trademark Application Covering "Driverless Cars" [9/29/17]
• Two Hurricane Irma-Related Trademark Applications Filed on Day Storm Hit Florida [9/14/17]
• Sig Sauer Files Applications to Register "Three-Dimensional Configuration of a Pistol" as Trademark [8/25/17]
• Is NUTTY NECKLACE Merely Descriptive of Necklaces Made of Stainless Steel Nuts? Not So Fast... [8/10/17]
• Realty Company Files Application to Register Color Pink on Yard Signs As Trademark [7/28/17]
• Virgin Enterprises Files Trademark Applications Covering "Space Travel Passenger Transportation Services" [7/18/17]
• Is RED CUP PONG Merely Descriptive of Beer Pong Tables? [7/14/17]

Vacuum Maker Dyson Files Trademark Application Covering "Driverless Cars"

On September 26th, reports surfaced that Dyson Technology Limited, best known for its high-end vacuums, would be building an electronic car by 2020. By that time, the United Kingdom-based company had already filed a United States trademark application covering car-related goods and services, which may provide some further insight into its plans.

On September 25th, Dyson Technology Limited filed with the U.S. Patent and Trademark Office a trademark application for DYSON (standard characters) covering not only "electronic cars," but also "driverless cars," "autonomous vehicles," "driverless transporter vehicles," and "motorcycles" (initial reports did not seem to mention driverless cars, although I may have missed it). 

Some of the other goods and services covered by this application include:

• All-terrain vehicles;
• A variety of parts and fittings for land vehicles (chassis, bumpers, transmission systems, etc.);
• Business consultancy services and business management advisory services, relating to the distribution, sale, maintenance, restoration and repair of motor vehicles and their parts and fittings;
• Distributorship services and retail store services relating to motor vehicles and parts; and
• Maintenance, repair, servicing, reconditioning, restoration, inspection, care, cleaning, painting and polishing of motor vehicles.

Dyson filed this application on an intent-to-use basis, which indicates it is not using DYSON in conjunction with these goods and services yet but has a bona fide intention to do so in the near future (which makes sense, considering it does not plan to fully develop these vehicles until at least 2020). TMEP 806.01(b); 15 USC 1051(b).

According to my quick search, this is the first automobile-related trademark application filed by Dyson Technology Limited in the United States (although the company owns 77 other active trademark registrations or application covering a variety of other goods and services).

The Ritz-Carlton Files Trademark Application Covering "Caviar"

As if the Ritz-Carlton hotel chain wasn't fancy enough already, a recent trademark application filed with the U.S. Patent and Trademark Office suggests the hotel may be adding another ritzy good to its lineup - caviar.

On September 15th, The Ritz-Carlton Hotel Company, LLC filed a federal trademark application for THE RITZ-CARLTON (in standard characters) covering a single good in Class 29 - "caviar." The hotel filed the application on an intent-to-use basis, suggesting it is not currently selling The Ritz-Carlton caviar but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). According to my search, this is the first trademark application covering caviar ever filed by The Ritz-Carlton.

Perhaps the hotel will be selling this caviar on their new yachts in 2019? Not only did the hotel announce The Ritz-Carlton Yacht Collection on its website, but it also filed five applications to register the words THE RITZ-CARLTON YACHT COLLECTION as a federal trademark back in June 2017. Those applications, which the hotel also filed on an intent-to-use basis, cover a variety of goods and services related to cruise services, including "transport of passengers and of goods," "cruise ship services," and "organizing and operating excursions, tours, holidays and cruises."

Before the trademark applications for THE RITZ-CARLTON covering caviar and THE RITZ-CARLTON YACHT COLLECTION covering a variety of cruise ship-related goods and services can actually register, the Ritz-Carlton must actually start using the mark to sell the listed goods and render the listed services and submit sufficient proof of such use to the U.S. Patent and Trademark Office. TMEP 1103; 15 USC 1051(d).

Caviar and yachts - [probably] coming to Ritz-Carlton soon.

Two Hurricane Irma-Related Trademark Applications Filed on Day Storm Hit Florida

As is the case when nearly any newsworthy event occurs (like with Covfefe), people across the country attempt to "capitalize" on a name or phrase by filing intent-to-use trademark applications with the U.S. Patent and Trademark Office ("USPTO"). Hurricane Irma, it appears, is no different.

On September 10th, the day Hurricane Irma made landfall in Florida, two Hurricane Irma-related trademark applications were filed - one for HURRICANE IRMA and the other for I SURVIVED HURRICANE IRMA.

An individual in Columbus, Mississippi filed the application for HURRICANE IRMA on an intent-to-use basis, which suggest she was not using the name as a trademark at the time of filing (i.e., was not selling goods or rendering services under that name) but has a bona fide intention to so do in the near future. TMEP 806.01(b); 15 USC 1051(b). That application covers a host of non-beer related alcohol products, including:

• Alcoholic beverages made of fruit; 
• Alcoholic beverages except beers;
• Alcoholic cocktail mixes;
• Alcoholic cocktails in the form of frozen pops; and
• Alcoholic coffee-based beverage.

Before this application can register, the applicant will need to actually start selling the goods listed in the application under the HURRICANE IRMA name and submit sufficient proof of the same to the USPTO. TMEP 1103; 15 USC 1051(d). If she cannot do this before her extensions run out, the application will go dead.

The applicant who filed the I SURVIVED HURRICANE IRMA application, an individual from Levittown, New York, also filed that application on an intent-to-use basis. That application covers:

• Tee-shirts; Tee shirts; Apparel for dancers, namely, tee shirts, sweatshirts, pants, leggings, shorts and jackets (Class 25); and 
• Tee-shirt embroidering services; Imprinting messages on tee-shirts (Class 40). 

As with the HURRICANE IRMA application, this applicant will need to start actually using this phrase in conjunction with the listed goods and services before he can obtain a registration. However, simply plastering this phrase on various clothing items is not typically enough to demonstrate trademark use and therefore obtain a registration. TMEP 1202.03(f)(i) ("Slogans or phrases used on items such as t-shirts and sweatshirts, jewelry, and ceramic plates have been refused registration as ornamentation that purchasers will perceive as conveying a message rather than indicating the source of the goods.").

Although it might not be an issue with these two applications given the differences in the underlying goods and services, often when a slew of applications are filed for the same mark, many of the underlying goods or services are related (i.e., there might be several more Hurricane Irma-related applications covering clothing filed in the future). In that case, later filed applications are often refused registration under Section 2(d) of the Trademark Act.

Under Section 2(d), an application that is likely to cause confusion with a previously filed mark will be refused registration. TMEP 1207.01; 15 USC 1052(d). But what happens when two applications are executed and filed on the same day, such as the applications above, which were both executed and filed on September 10th? Which is the previously filed application? In this case, because the execution date and filing date are the same for both applications, the application with the lowest serial number will be deemed the earlier filed application. TMEP 1208.01(b). In this case, that is the HURRICANE IRMA application (Ser. No. 87/602,370), not I SURVIVED HURRICANE IRMA (Ser. No. 87/602,412).

Only two Hurricane Irma-related trademark applications have been filed so far, but considering the most recent trademark applications appearing in the USPTO's database are only from September 10th (the database is usually 4-5 days behind), I would not be surprised to see more applications in the near future.

Jake Paul Files Applications to Register JAKE PAUL, IT'S EVERYDAY BRO as Trademarks

Sometimes controversial actor and YouTube personality Jake Paul has been busy filing federal trademark applications with the U.S. Patent and Trademark Office over the past two weeks. Or, more appropriately, his business entity 10 Digit Investments, LLC has been busy (this entity is listed as the owner of the trademark applications and the California Secretary of State website lists Jake Paul as a member or manager of the LLC).

Jake's business entity filed the most recent trademark application, for JAKE PAUL, on September 8th. That application covered a variety of goods and services, including:

• Musical sound recordings (Class 9);
• A variety of clothing items (Class 25);
• Publicity services; promoting the interests of musicians, entertainers, artists, and social media personalities; advertising services, namely, promoting the brands, goods and services of others (Class 35); and
• Entertainment services, namely, arranging and conducting live performances, personal appearances, television performances, and radio performances by an entertainer, social media personality and performing artist (Class 41).

Additionally, on September 1st, 10 Digit Investments, LLC filed a trademark application for IT'S EVERYDAY BRO, covering similar goods and services as well as bedding, linens, printed materials, and toys. Finally, on August 29th, Jake filed the first JAKE PAUL trademark application, covering bedding, linens, printed materials, and toys.

Noteably missing from the JAKE PAUL trademark applications is Jake's written consent to register his name as a trademark, which is required under Section 2(c) of the Trademark Act. See TMEP 1206.04. Before the JAKE PAUL trademark applications can mature to registrations (assuming everything else is in order), Jake will need to submit this written consent.

According to my quick search, these are the first federal trademark applications filed by Jake Paul and his business entity, 10 Digital Investments, LLC. Loeb & Loeb, a law firm based in Los Angeles and known for representing celebrities and entertainment clients, assisted Jake Paul with these trademark filings.

10 Trademark Applications for JURASSIC WORLD: FALLEN KINGDOM Filed By Universal City Studios/Amblin' Entertainment

Apparently a new Jurassic Park movie, titled Jurassic World: Fallen Kingdom is being released next summer (news to me), and Universal City Studios, LLC and Amblin' Entertainment, Inc. are already getting a head start on protecting the movie's title.

On September 7th, Universal City Studios and Amblin' jointly filed ten applications to register JURASSIC WORLD: FALLEN KINGDOM as a federal trademark, with each application covering different goods or services. Those goods and services cover not only entertainment services, but also a variety of merchandise one would expect to be marketed with a blockbuster movie. Some of the goods and services listed in these applications include:

• Entertainment services in the nature of the production and distribution of film, television series and short form entertainment content each featuring reality, comedy, drama, news and variety; amusement park attraction and theme park services (Class 41);
• Books and magazines in the fields of entertainment (Class 16);
• Prerecorded video discs and DVDs featuring motion pictures, television series or other short form entertainment programs in the nature of comedy, drama, news, reality and variety content; downloadable software in the nature of a mobile application for playing games and accessing entertainment content for use with computers, portable handheld digital electronic communication devices, mobile devices and wired and wireless communication devices (Class 9);
• A variety of clothing items (Class 25);
• Toys, games and playthings, namely, action figures and accessories therefor (Class 28); and
• A variety of snacks and food items (Classes 29 and 30).

Universal and Amblin' filed all these applications on an intent-to-use basis, suggesting they have a bona fide intention to (but may not) use the JURASSIC WORLD: FALLEN KINGDOM mark in conjunction with all the listed goods and services (which makes sense considering the film is not set to be released until next summer, so it's very unlikely they would be offering those goods and services under that mark as this time). See TMEP 806.01(b); 15 USC 1051(b).

As I've blogged about before, it is not uncommon for entertainment companies to file several trademark applications for a broad range of goods and services prior to the premiere of a movie or television show. I would not be surprised if Universal and Amblin' file more applications for this film prior to the premiere date.

According to reports, Chris Pratt is back to star in this film, which is scheduled to hit theaters on June 22, 2018.

24 Beer-Related Trademark Applications Filed in Single Day as Beer Field Gets More and More Crowded

In my opinion, trademark applications for beer and breweries are some of the most popular filings these days. In fact, I've blogged about it before - here and here. That trend doesn't appear to be slowing down any time soon.

On September 6th (the most recent trademark applications available for viewing in the USPTO's database are always 4-5 days behind), applicants filed twenty-four beer-related trademark applications. Some of the highlights include:

• CATFISH [standard characters] for beer filed by Turtle Anarchy Brewing Company, LLC in Nashville, Tennessee;
•  for beer and lager filed by Full Sail Brewing Company in Hood River, Oregon;
• BUZZROCK BEER COMPANY [standard characters] for beer filed by an individual in Hermosa Beach, California;
• GAY BEER [standard characters] filed by Loyal Brands, LLC in New York City;
• for beer filed by Hatchet Brewing Company, LLC in Southern Pines, North Carolina; and
• TAPER [standard characters] for beer filed by Sufferfest Brewing Company, LLC in San Francisco, California.

Many of these entrepreneurs and brewing companies take advantage of the intent-to-use filing basis under 15 USC 1051(b), which allows an applicant to obtain priority (contingent upon registration) in a mark prior to developing any common law rights. See also TMEP 1101. In other words, if a brewer has a bona fide intention to use a name or logo with a beer (i.e., has developed marketing plans, has ordered proofs, etc.), it can effectively "reserve" rights in that name or logo as of the filing date with an intent-to-use trademark application, if that application actually matures to a registration.

The large number of trademark filings for beer-related marks also demonstrates the importance of a trademark search prior to use and filing of a mark. Not only will the Trademark Office refuse, under Section 2(d) of the Trademark Act (see also TMEP 1207 et seq.), to register a mark that is too similar to an active, previously-filed application or registration, using a mark that is too similar to another's mark can put a newcomer at risk of infringement, if the newcomer's goods or services are related to those offered by the senior user. A trademark search helps identify these risks up front and can save substantial headaches (and costs) down the road. If you plan on using or filing an application for any mark (and especially beer-related marks), a trademark search is highly recommended.

Are Rocky and Bullwinkle Coming Back? Five Recent Trademark Applications Hint at Return

Remember the animated The Rocky and Bullwinkle Show from the late 1950's and early 1960's? It may be making a return, if recent trademark applications are any indication.

On September 1st, Ward Productions, Inc. (the producer of the show) filed four trademark applications to register THE ADVENTURES OF ROCKY AND BULLWINKLE as a trademark with the U.S. Patent and Trademark Office. The studio also filed another application for the show's title back in February. The goods and services covered by these applications are those you would expect to be offered in conjunction with a television series or movie, including:

• Entertainment services in the nature of the production and distribution of film, television series and short form entertainment content each featuring reality, comedy, drama, news and variety (Class 41);
• Prerecorded video discs and DVDs featuring motion pictures, television series or other short form entertainment programs in the nature of comedy, drama, news, reality and variety content (Class 9);
• Books and magazines in the fields of entertainment; comic books; graphic novels (Class 16);
• Variety of clothing items (shirts, dresses, pants, etc.) (Class 25); and
• Toys, games and playthings, namely, action figures and accessories therefor (Class 28).

Ward Productions filed all these applications on an intent-to-use basis, suggesting it was not using the mark in commerce on the filing date but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b). Before these applications can mature into registrations, the animation studio must actually start using THE ADVENTURES OF ROCKY AND BULLWINKLE in conjunction with the listed goods and services. TMEP 1104; 15 USC 1051(c)-(d).

Ward Productions does currently own federal trademark registrations for ROCKY AND BULLWINKLE and ROCKY AND BULLWINKLE AND FRIENDS, but those registrations only cover comic books/magazines and greeting cards/calendars, respectively. 

So are Rocky and Bullwinkle returning? Maybe. Pay attention to these trademark applications to find out.