Wednesday, May 31, 2017

Android Creator Files 83 Trademark Applications for New "Essential" Brand, Hinting at Brand's Expansiveness

Essential Products, Inc., a corporation associated with Android creator Andy Rubin, according to the California Secretary of State's website, filed 83 federal trademark applications in May 2017 for what appears to be his new brand of AI-infused consumer gadgets.

Some of the applications filed by Essential Products include ESSENTIAL PHONEESSENTIAL HOME, ESSENTIAL AR, ESSENTIAL FITNESS, and ESSENTIAL CAR. A full list of the marks filed in May is at the bottom of this post. You can also go to the USPTO's TESS system and type ""Essential Products Inc"[on] and 201705??[fd]" into the free form search box to see every application.

The goods and services covered by each application are expansive, although most overlap across applications. Some of the goods/services covered are:
  • Virtual reality headsets and head mounted displays for use in playing video games; mobile phones; smart phones; computers and tablet computers (Class 9);
  • Providing consumer information via voice-controlled automated inquiries, namely, providing an online automated consumer resource for searching, locating, rating and providing directions for the purchase, consumption and use of a wide range of consumer products, services and information over a global communications network (Class 35);
  • Application service provider (ASP) services featuring computer software and providing online nondownloadable software, namely, computer software for creating, authoring, distributing, downloading, transmitting, receiving, playing, editing, extracting, encoding, decoding, displaying, storing and organizing text, graphics, images, audio, video, and multimedia content (Class 42).
All the applications were filed on an intent to use basis, suggesting the company is not using any of these marks in commerce yet but has a bona fide intention to do so in the near future.

In addition to the marks above, on December 20th of last year Essential Products filed a trademark application for the logo below, covering "mobile phones; smart phones; computers and tablet computers; accessories and replacement parts for all the aforementioned goods; computer operating software for mobile phones, smart phones, computers and tablet computers" in Class 9.
According to Bloomberg, Andy Rubin left Google about two years ago and is planning to develop a suite of consumer hardware products with recruits from Apple and Google. With this mass filing of trademark applications, it looks like he is on his way.

Friday, May 26, 2017

Delaware Company Files Trademark Application for COTTON CANDY COMB OVER...Any Problem?

When I clicked this trademark application, I had an idea as to what it may be referring, and sure enough my suspicions were confirmed. On May 22nd, a Delaware company called Integrity Brands, LLC filed a federal trademark application with the U.S. Patent and Trademark Office for COTTON CANDY COMB OVER [standard characters] covering "candy; cotton candy" in Class 30. According to the application, the applicant has been using this mark since at least April 1, 2017.

The specimen submitted with the application, which shows the manner in which the mark is seen by the public (see TMEP 904 et. seq.) and is pictured below, shows you where the applicant got this unique idea for their cotton candy.
Are there any issues with this application? Is the applicant entitled to a federal registration for this mark? A couple sections of the Trademark Act that might apply are discussed below.

Section 2(c) of the Trademark Act (15 USC 1052(c)) is an absolute bar to the registration of a mark that "consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent..." This bar applies not only to full names, but also "first names, surnames, shortened names, pseudonyms, stage names, titles, or nicknames." TMEP 1206.01.

However, unlike the application for TRUMPMOJI that I blogged about last year, which was refused registration under Section 2(c) for using Trump's name, this mark does not contain anything referring to Trump, just the words COTTON CANDY COMB OVER. The specimen shows how the public views the mark, but nothing other than the words COTTON CANDY COMB OVER are the subject of this trademark application.

What about Section 2(a) (15 USC 1052(a)), which bars the registration "of a designation that consists of or comprises matter which, with regard to persons, institutions, beliefs, or national symbols, does any of the following: (1) disparages them; (2) falsely suggest a connection with them; (3) brings them into contempt; or (4) brings them into disrepute"? TMEP 1203.03.

When it applies to a non-commercial interest, the elements of a Section 2(a) disparagement refusal are:
  1. What is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services; and
  2. If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group. 
TMEP 1203.03(b)(i). This refusal, for example, has been applied to the mark HEEB for clothing and entertainment services, when the evidence supported the derogatory nature of HEEB in reference to the Jewish community. In re Heeb Media LLC, 89 USPQ2d 1071 (TTAB 2008). Is the term COTTON CANDY COMB OVER of a similar nature? Doubtful. (Note - the constitutionality of the disparagement bar under Section 2(a) was recently argued in front of the U.S. Supreme Court and a decision is due any day).

To establish that a mark may falsely suggest a connection with a person or an institution as prohibited by Section 2(a), it must be shown that:
  1. the mark is the same as, or a close approximation of, the name or identity previously used by another person or institution;
  2. the mark would be recognized as such, in that it points uniquely and unmistakably to that person or institution;
  3. the person or institution named by the mark is not connected with the activities performed by the applicant under the mark; and
  4. the fame or reputation of the person or institution is such that, when the mark is used with the applicant’s goods or services, a connection with the person or institution would be presumed.
TMEP 1203.03(c)(i). Again, the mark here is COTTON CANDY COMB OVER, not anything mentioning Trump. Is COTTON CANDY COMB OVER a "close approximation of, the name of identity previously used by another person" and "would be recognized as such, in that it points uniquely and unmistakably to that person or institution"?

You be the judge of the above. We'll find out what the examining attorney assigned to this application at the USPTO thinks when this application is assigned in approximately three months.

Monday, May 22, 2017

Company Behind RompHim Files Trademark Application for ROMPHER

By now you may have heard about the viral RompHim sensation - a romper designed specifically for men and possibly the hottest summer trend of 2017. The guys behind the newest fashion trend and their business entity, Aced Clothing, LLC, sought to raise $10,000 for their idea on Kickstarter but have greatly exceeded that, raising $365,563 so far.
Aced Clothing filed a federal trademark application for ROMPHIM on March 29, 2017 that covers "Headwear; Jackets; Pants; Rompers; Shorts; Tank tops; Wearable garments and clothing, namely, shirts; Jackets." As of the date of this post, it has not been assigned to an examining attorney at the U.S. Patent and Trademark Office for review.

A more recent trademark application by Aced Clothing, LLC, however, suggests the company might not be solely focused on men after all. On May 16th, it filed another federal trademark application for ROMPHER (get it?). Similar to the ROMPHIM application, this application also covers various clothing items, although the specific items vary slightly. The ROMPHER application covers "Bathing suits; Dresses; Hats; Pants; Rompers; Shirts; Shorts; Skirts; Tank tops."

Aced Clothing filed the ROMPHER, and ROMPHIM, applications on an intent to use basis, suggesting it is not yet using these trademarks in commerce but has a bona fide intention to do so in the near future. See TMEP 806.01(b); 15 USC 1051(b). This makes sense because, at least in the case of ROMPHER, it does not appear Aced Clothing is selling these goods yet. Before either of these applications will fully register, Aced Design will need to start selling or shipping the RompHim and RompHer goods in interstate commerce and submit sufficient proof of same to the USPTO. See TMEP 1103.

The ROMPHIM trademark application will probably be assigned to an examining attorney at the USPTO within the next month and the ROMPHER application sometime around mid-August (it typically takes around 3 months after an application is filed for it to be assigned to an attorney at the USPTO for review). When assigned, the examining attorney will review the applications and determine whether they should be approved for publication (one of the final phases in the registration process) or, if there is a problem, issue an Office action to which the company will need to respond accordingly.

Will RompHer catch on like RompHim? We can only hope.

Friday, May 19, 2017

Ubisoft Files New SPLINTER CELL Trademark Application Covering Multi-Player Computer Games, eSports Competitions

UbiSoft's Tom Clancy's Splinter Cell series has been around for years, boasting six installments of video games over the years, the last of which UbiSoft released in 2013. A recent federal trademark application for SPLINTER CELL filed by UbiSoft with the U.S. Patent and Trademark Office, however, suggests a new installment may be in the works.

UbiSoft filed the application on May 15th for a variety of computer and video game-related services in Class 41, including:
  • Entertainment services, namely, providing interactive multi-player computer games via the internet and electronic communication networks;
  • Entertainment services, namely, continuing television programs and interactive television programs featuring comedy, drama, live-action, and animation, broadcast over television, satellite, audio, and video media;
  • Entertainment services, in the nature of eSports competitions; and
  • Providing a web-based system and on-line portal for gamers to participate in on-line gaming, operation and coordination of game tournaments, leagues and tours for computer game playing purposes; rental and distribution of entertainment content of others, namely, video games, movies and television shows.
The application was filed on an intent to use basis, suggesting UbiSoft is not yet using the SPLINTER CELL trademark in conjunction with all the services listed in the application but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1051(b).

This is the first video game-related SPLINTER CELL trademark application filed by UbiSoft since October 2016. That application covered services similar to those in this most recent one. UbiSoft does already own four federal trademark registrations for SPLINTER CELL going back to 2002, and registrations for SPLINTER CELL CONVICTION, SPLINTER CELL CHAOS THEORY, and SPLINTER CELL DOUBLE AGENT. Although these registrations cover video games, none cover services as expansive as those in the most recent applications, such as eSports competitions or television programs.

Monday, May 15, 2017

Commissioner of Baseball Files Four Applications to Register World Series Trophy as a Trademark

Major League Baseball's Commissioner's Trophy, given to the winner of the World Series, may be a federally registered trademark soon. On May 10th, the Office of the Commissioner of Baseball filed four federal trademark applications with the U.S. Patent and Trademark Office for the trophy. These appear to be the first federal trademark applications for the trophy filed by the Commissioner.

The applications describe the mark as "a design representing a three-dimensional object comprised of thirty flags mounted on poles and arranged in a circle on a round base. The interior of the base consists of a slightly raised dome." According to the application, this particular design was first used in commerce on July 7, 2000 (I don't know enough about baseball to know the significance of that date, if any).

The Commissioner filed each application in one class of goods and services (hence the four applications). The goods and services covered by these applications include:
As I've blogged about before, it is certainly possible to obtain a federal trademark registration for the way something looks. Generally, a configuration cannot be not functional if it is to be registered and protected as a trademark. See TMEP 1202.02(a)(iii); 15 USC 1052(e)(5). How does one determine whether a product feature or design is functional? Generally four 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.
See TMEP 1202.02(a)(v);  In re Morton-Norwich Prods., Inc., 671 F.2d 1332, 1340-1341 (C.C.P.A. 1982). Additionally, the product feature or design, as with all trademarks, must be inherently distinctive or have acquired distinctiveness. TMEP 1202.02(b). Note that product designs, as opposed to product packaging, can never be inherently distinctive. TMEP 1202.02(b)(i).

The MLB is not the only professional sports league to seek a federal trademark registration for its championship trophy. The NFL has owned a federal registration for the Vince Lombardi Trophy since 1983. And in 2015, the National Hockey League obtained a federal registration for "a three-dimensional configuration of a trophy with a ridged circular base, that narrows into an open bowl shape with curved lines radiating upward from the base of the bowl" (aka the Stanley Cup).

Wednesday, May 10, 2017

Recent Trademark Application Suggests Megyn Kelly's New Sunday Night Show on NBC Might Have a Name

Back in January, longtime Fox News host Megyn Kelly left the network to join NBC News. Recently, it was announced that her new Sunday night show on NBC would premiere in June. And now, if a recent trademark application is any indication, that new show might have a [predictable] name.

On May 5th, NBCUniversal Media, LLC filed a federal trademark application for SUNDAY NIGHT WITH MEGYN KELLY. The application covers "Entertainment services, namely, an ongoing television series featuring politics, business, news and public affairs rendered through the media of television, cable, satellite, and broadband systems, via the internet, and portable and wireless communication devices" in Class 41.

NBC filed the application on an intent to use basis, which suggests the network is not currently using the trademark in commerce but has a bona fide intention to do so in the near future (which makes sense considering the show is not set to air until June). See 15 USC 1051(b). This is the first application related to Megyn Kelly filed by NBC.
Along with the application, Megyn Kelly submitted a declaration consenting to the use of this trademark and its registration with the U.S. Patent and Trademark Office (above). Such a written declaration is required when a trademark consists of or comprises a name (including nicknames), portrait, or signature of a living individual. See 15 USC 1052(c).

So is SUNDAY NIGHT WITH MEGYN KELLY the name of her new Sunday NBC show? The application doesn't guarantee NBC will go with this name, but the "bona fide" intention requirement of the Trademark Act does require that something more than just an idea be in the works for the mark. Stay tuned.

Wednesday, May 3, 2017

"Catch Me Outside" Girl Files Trademark Applications for CASH ME OUSSIDE

Update - May 10th

Dani B Holdings, LLC filed six more trademark applications after my original post below. Two CASH ME OUTSIDE trademark applications were filed for various entertainment services and apparel. Additionally, two applications for CASH ME OUSSIDE HOW BOW DAH and two applications for CASH ME OUTSIDE HOW BOW DAH were filed on May 2-3, also covering various entertainment services and apparel.

Original Post - May 3rd

You know her as the "Catch Me Outside" girl, but her real name is Danielle Bregoli and she (or, more accurately, a business entity that appears to be associated with her) recently filed two applications with the U.S. Patent and Trademark Office to register CASH ME OUSSIDE as a trademark.
On April 28th, a Florida company called Dani B Holdings, LLC filed the CASH ME OUSSIDE applications in multiple classes covering a wide variety of goods and services (some based on actual use in commerce and others on an intent to use), including:
Dani B Holdings, LLC is a Florida limited liability company organized in March 2017 with an address in Hollywood, Florida and lists Barbara Bregoli, Danielle's mother, as the manager

After uttering her infamous phrase on Dr. Phil in September 2016, 14-year-old Danielle has amassed millions of followers on social media (like Facebook, Instagram, and Twitter) and may be getting her own reality TV show.

These two applications appear to be the first applications associated with Danielle to be filed with the USPTO. Are applications for HOW BOW DAH next?

Tuesday, May 2, 2017

Is MTV Bringing Back TRL?

The popular MTV television series TRL (aka Total Request Live) from the late 1990's and 2000's might be making a comeback if recent trademark applications are any indication.
On April 27th, Viacom International, Inc., MTV's parent company, filed three trademark applications with the U.S. Patent and Trademark Office (USPTO) for:
Viacom filed each application in Class 41 covering the same services:
Entertainment services in the nature of continuing program series, featuring live action, comedy and drama provided through cable television, broadcast television, internet, video-on-demand, and through other forms of transmission media; providing online information in the field of entertainment concerning television programs; entertainment services, namely, providing radio programs and podcasts in the fields of music and news; production and distribution of radio programs and podcasts and distribution of radio programs and podcasts for others
Each application was filed on an intent to use basis, which indicates Viacom is not currently using these marks in commerce but has a bona fide intention to do so in the near future (which makes sense considering the last episode aired in 2008). See TMEP 806.01(b); 15 USC 1051(b).

While Viacom filed multiple applications and had some registrations for TRL or TOTAL REQUEST LIVE in the late 1990's and early 2000's, all have since expired. Only one registration for TRL is still active. However, that registration, registered in August 2004 and renewed in 2014 for another ten year term, covers a variety of clothing items in Class 25, not entertainment services or television shows.

These are the first TRL-related applications filed by Viacom since 2003 and the first TRL-related applications covering a entertainment services in the form of a television program filed since 2001.

Does this mean TRL is making a comeback? Maybe. Section 1(b) of the Lanham Act, 15 USC 1051(b), only requires that the applicant have a bona fide intention to use the mark in commerce. A "bone fide intent" only requires that there be something in the works for the mark and the underlying goods/services (i.e., a business plan, contracts in place, etc.), but does not mandate that the applicant actually start using the mark. That being said, if Viacom wants the above applications to mature into a federal registration, it will need to start using the marks and submit sufficient proof of same to the USPTO. See TMEP 902.

So, something is probably in the works for TRL, although what exactly is not clear. My only request is that they bring back Carson Daly.

Monday, May 1, 2017

California Company Files Trademark Application for BLOODY MARY ON DRAFT

If brunch is your thing, you might be into this - on April 26th a company in California called In A Jar, LLC filed a federal trademark application for BLOODY MARY ON DRAFT. The application covers, of course, "alcoholic cocktail mixes" in Class 33.
Even better for brunchers, the application indicates that this trademark has been in use with the associated goods at least as early as March 1, 2017, indicating the underlying goods are already for sale and probably out there in the marketplace.

According to the company's website, the company (which appears to be doing business as "Preservation") will provide a bar with a kegerator that works with a bar's existing tap lines, as well as various Bloody Mary mixes that can be used with the system, so that a bar can pour Bloody Mary's just as they would pour beer (ed. - is this available for home use as well?).

Will this application face a Section 2(e)(1) refusal, which prohibits the registration of "merely descriptive" trademarks on the Principal Register? See TMEP 1209.01(b) ("A mark is considered merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services"). Maybe. We will find out in approximately three months when this application is assigned to a Examining Attorney at the U.S. Patent and Trademark Office.

So, would you try a Bloody Mary from a tap? I think I'd give it a shot.