Thursday, June 28, 2018

Applications Filed to Register I REALLY DO CARE Phrases as Trademarks After Melania Trump Wears Controversial Jacket

On her way to visit migrant families in Texas last week, First Lady Melania Trump sported a Zara jacket with the phrase "I really don't care do u?" emblazoned on the back. The choice of apparel ignited a controversy regarding the administration's attitude towards the migrant families. It also prompted many celebrities to respond by printing various "I really do care" phrases on the back of their own jackets and led to at least two federal trademark applications for similar phrases (although they don't appear to be filed by celebrities or major apparel companies).
On June 22, a joint venture in California filed an application to register the words I REALLY DO CARE, DO U? as a trademark for various athletic apparel (see specimen submitted with the application above). Additionally, on June 23, a corporation in Florida filed an application to register I REALLY DO CARE. DON'T U? as a trademark for various apparel (see specimen submitted with application below).
Unfortunately for these applicants, their slogans will likely be refused registration on the basis of ornamentation. Merely decorative subject matter, which does not identify and distinguish an applicant's goods, does not function as a trademark and therefore cannot be registered as one. See TMEP 1202.03. Slogans or phrases used on items such as t-shirts and sweatshirts are routinely refused registration because "purchasers will perceive [them] as conveying a message rather than indicating the source of the goods." TMEP 1202.03(f)(i).

When you see the phrases on the shirts above, do you see a message being conveyed? Or does it tell you the source of the shirt? If you see a message being conveyed, rather than the source of the shirt (i.e., Nike, adidas, Hanes), the use is probably ornamental, not trademark use. We'll see what the examining attorneys assigned to review these applications at the USPTO think in about three months.

Wednesday, June 27, 2018

Anheuser-Busch Files Applications to Register FROSE-A-RITA, BERRY-KIWI-RITA, and Several Other "-RITA's" as Trademarks

The month of June was a busy time for Anheuser-Busch and RITA-themed trademark applications. The beverage giant filed six applications to register various -RITA marks this June (ed. - appropriate summer trademarks, no?) and appears to be expanding this line of products, if these trademark applications are any indication. The application filed this month are for:
Anheuser-Busch filed each application in Class 32 for "flavored beer." The applications were filed on an intent-to-use basis, suggesting Anheuser-Busch is not currently using these trademarks with flavored beer but has a bona fide intention to do so in the near future. TMEP 806.01(b); 15 USC 1052(b). Before these applications can register, Anheuser-Busch must start using these trademarks in conjunction with the sale of flavored beer and submit sufficient proof of same to the U.S. Patent and Trademark Office, like it did for an application it filed in 2016 for BUD LIGHT LIME COCO-NUT-RITA SPLASH (see image to the right for the evidence filed).

In December 2016, I blogged about Anheuser-Busch's application for GRAPE-A-RITA, which has since registered. Back in August and September 2016, the beverage company filed trademark applications for BUD LIGHT LIME COCO-NUT-RITA SPLASH, BUD LIGHT LIME PINE-APPLE-RITA SPLASH, BUD LIGHT LIME PEACH-A-RITA, and BUD LIGHT LIME ORANGE-A-RITA. All those applications, except BUD LIGHT LIME COCO-NUT-RITA, were abandoned because Anheuser-Busch did not submit proof it was using those trademarks by the deadline to do so. However, Anheuser-Busch refiled similar marks without "Bud Light Lime" in front and obtained registrations for those (like PEACH-A-RITA and ORANGE-A-RITA).

According to my quick search, Anheuser-Busch currently owns 463 active trademark applications or registrations with the U.S. Patent and Trademark Office. And yes, a registration for DILLY DILLY covering "beer" is one of them.

Wednesday, June 6, 2018

Bacardi Files Application to Register Grey Goose Bottle Design as a Trademark

Recognize the source of the bottle below? If so, it might be functioning as a trademark, which is exactly what Bacardi is banking on given its recent federal trademark application for this bottle design.
On June 1st, Bacardi & Company Limited filed an application with the U.S. Patent and Trademark Office to register the design above as a trademark. Bacardi filed the application in Class 33 for "alcoholic beverages except beers" and described the mark as
a bottle with a narrow neck which has a blue and white neck label with white geese imprinted on a blue band on the bottom of the neck label. Centered on the front of the bottle is a silhouette of a large goose and several smaller geese behind and in front of the larger goose. These geese appear to be flying over a mountainous lake design which is generally blue with some white for shading purposes. There is a flock of white flying geese above the lake. Below the mark is a rectangle comprising a blue portion on the left, a red portion on the right, and a white portion in the middle.
Can product designs or packaging function as trademarks? Yes, if they are (1) non-functional and (2) distinctive. TMEP 1202.02. In other words, the product design or packaging must not be essential to the use or purpose of the article or affect the cost or quality of it (i.e., non-functional) and, by its intrinsic nature, serve to identify a particular source (i.e., it is distinctive). See TMEP 1202.02(a)(iii)(A) and TMEP 1202.02(b)(i).

Bacardi has had success registering bottle designs as trademarks in the past. For example, it owns a registration for the Grey Goose Le Melon bottle design and the Dewar's White Label bottle design, among others.

In this case, however, Bacardi may need to clarify some things before it can obtain a registration. For example, is the Grey Goose design Bacardi seeks to register for a two-dimensional depiction of the bottle or for a three-dimensional bottle design? The USPTO asked Bacardi the same thing in an application Bacardi filed for a Bacardi rum bottle back in December 2017. Specifically, in that case the USPTO asked Bacardi to indicate whether the application was for a three-dimensional configuration of the goods or packaging or a specific design feature of the goods or packaging. Because the mark description for the Grey Goose bottle does not specify whether it is for a three-dimensional configuration, Bacardi may need to indicate as much again.

According to my quick search, Bacardi & Company owns 197 active trademark applications or registrations with the USPTO, several of which are for bottle designs and/or bottle configurations (like this one for the Grey Goose VX bottle).