Quarterly Index (1/1/16 - 3/31/16)

How To Lose Your Trademark Filing Fees:

• File FRESH SMASHED LEMONADE for lemonade [merely descriptive]
• File For Male Genitalia [obscene, scandalous]*
• File For Unauthorized NFL Apparel [likelihood of confusion]

*The ban on obscene and scandalous trademarks is currently in jeopardy.

Entertainment Trademark Filings:

• Did Taylor Swift File These Trademark Applications for SWIFTSEND, THE SWIFTLIFE and Several Others? [3/30/16]
• Back At It Again..."Damn Daniel" Meme Creators File More Trademarks [3/2/16]
• Creators of "Damn, Daniel" Meme File Trademarks For DAMN DANIEL Phrase [2/29/16]
• ANOTHER ONE - DJ Khaled Files 9 Federal Trademark Applications [2/17/16]
• ALFRED HITCHCOCK Trademarks Filed by Late Director's Estate [2/9/16]
• D.C. Comics Prepares for Wonder Woman Movie With Ten Trademark Filings [2/8/16]
• DJ Khaled Files Trademark for WE THE BEST [1/29/16]
• Fox Files Trademarks For Much Anticipated 24: Legacy [1/27/16]
• What is Paramount's Alphaworld? [1/26/16]
• JAY LENO Trademark Filed For Television and Entertainment Services [1/20/16]
• Production Company Behind Ancient Aliens Files Trademark for Possible New Show [1/4/16]

Sports Trademark Filings:

• PGA Tour Files Trademark Application For...Goat? [3/28/16]
• SoulCycle Files Trademark Application for Yellow Wheel Design [3/21/16]
• Seattle Seahawks File Trademark Application for BLUE THUNDER Drumline [3/18/16]
• Name and Logo For Worcester, MA's New ECHL Team Possibly Revealed in New Trademark Application [3/16/16]
• Big Ten Conference Files Trademark for MARCH IS ON! [3/4/16]
• Ohio State University Files Trademark Application to Protect Jersey [2/23/16]
• Parody Mark for NOTSPORTSCENTER Filed...Will It Register? [2/15/16]
• NASL Expanding West With Trademark Filings For San Francisco Soccer Team? [2/3/16]
• Panthers File Trademark for ONE CAROLINA Promotional Slogan [2/1/16]
• Chargers Football Company Files Trademark Apps For LA CHARGERS [1/19/16]

Food and Drink Trademark Filings:

• 21 Beer Trademarks Filed on Single Day as Craft Beer Industry Continues to Grow [3/7/16]
• Travel to the St. Thomas for SCOOPS & BREW [2/25/16]
• Quaker Oats Files Trademark for Football Inspired Cereal [2/16/16]
• Shock Top Files Trademark Application For Beer Tap [2/11/16]
• Is MillerCoors Opening a Line of Bars and Restaurants? [2/2/16]
• LIKELIHOOD OF CONFUSION - A Wine For Trademark Attorneys? [1/25/16]

Other Unique Filings:

• Guest Post - 3 Tips For Registering a Hashtag as a Trademark [3/25/16] 
• COTTON CANDY Trademark Highlights Difference Between Descriptive, Arbitrary Marks [3/24/16]
• What Is This Trademark Filed by Google? [3/9/16]
• Is Amazon Getting Into The Language Learning Field? [3/1/16]
• Crocs Files Trademark Applications For Shoe Designs...But Are They Functional? [2/24/16]
• Frontier Airlines Files Trademark Applications for Tail and Rudder Designs [2/22/16]
• Apple Files Trademark Applications for SMART CONNECTOR Interface [2/18/16]
• Do Your Fingers Need Socks? Try FINGERSOXX [2/4/16] 
• MACKI GNAWS Trademark Filed For Dog Treats [1/28/16]
• Is Pan Am Coming Back? [1/22/16]
• Metropolitan Washington Airports Authority Files 7 Trademark Applications [1/21/16]
• Ford Files Trademark Application For New FORDPASS App [1/15/16]
• President Obama Prepares for End of Presidency With Recent Trademark Application [1/13/16]
• Trademark for THE APP THAT CLEANS YOUR CAR Filed [1/7/16]

Did Taylor Swift File These Trademark Applications for SWIFTSEND, THE SWIFTLIFE and Several Others?

On March 25th, a Delaware limited liability company called Cobalt Canyon, LLC filed 20 federal trademark applications for a variety of trademarks that seem to be associated with the signer Taylor Swift.

The marks are seen above and include filings for SWIFTSEND, TAYPLAY, TAY, and THE SWIFTLIFE. The applicant filed each mark in both Class 041 and Class 035 (which is why each mark appears twice) for a variety of services. Those services include "[e]ntertainment services in the nature of life musical performances," "[e]ntertainment, namely, live music concerts," "[e]ntertainment services, namely, public appearances by a muscial artist and entertainer," "fan club services," and "computerized on-line ordering services featuring a wide variety of products related to a musical artist and an entertainer." Seems suggestive of a popular musical artist that uses variations of Swift- and Tay-, no?

In the past, Taylor Swift has filed trademark applications under her own name and under her IP management and holding company, TAS Rights Management, LLC (as I've blogged about before). However, a quick search of the U.S. Trademark Office's database does not show any previous filings for Taylor Swift-related trademarks by Cobalt Canyon, LLC.

The nature of Cobalt Canyon, LLC's relationship with Taylor Swift, if any, is unclear. Although the LLC was legally organized in Delaware, the address listed on the trademark applications corresponds to the New York City office of the law firm McGuire Woods.

Whoever is behind these trademark applications spent a significant amount of time and money getting them filed. If these applications were not filed by Taylor Swift, the similarity of the marks and the relatedness of the services with those provided by the singer mean these marks border on the lines of infringement (and many of them probably do infringe Taylor's marks). That being said, and given that Taylor Swift is especially protective of her brand, I find it unlikely that anyone other than her would file these trademark applications.

PGA Tour Files Trademark Application For...Goat?

On the day the 2016 World Golf Championships - Dell Match Play began, the PGA Tour, Inc. filed three trademark applications. Two related to the President's Cup but the third related to something a little different...a goat.

That's right. On March 23rd, the PGA Tour, Inc. filed a federal trademark application for the goat silhouette seen below.

What does the PGA intend to use this goat trademark on? The goods and services listed on the application provide some insight. 

The goods and services listed are "wine and beer glasses, wine openers, and bottle openers" in Class 021, "[m]en's and women's clothing, namely shirts, sweaters, jackets, pants, shorts, and headwear" in Class 025, "[s]porting goods, namely, golf clubs, golf bags, golf bag tags, golf club head covers, golf balls, ball markers, and divot tools" in Class 028, and "[e]ntertainment services, namely in the nature of gold tournaments" in Class 041. This application was filed on an intent-to-use basis so a specimen showing use of the mark in commerce is not yet available.

What does this goat have to do with the PGA Tour? I have no idea. However, one day before the PGA Tour filed this trademark application, it did post a video of Divot the Goat picking his winner of the Dell Match Play tournament. Maybe that silhouette is Divot?

Guest Post - 3 Tips For Registering a Hashtag as a Trademark

As I search the U.S. Patent and Trademark Office's database on almost a daily basis, I often run across trademark applications or registrations for hashtag marks. These marks have been increasingly popular over the last couple years as companies attempt to develop a presence on social media.

But can these hashtags be registered as trademarks? Yes, they can, but only under certain circumstances. Cheryl Hodgson of Hodgson Legal wrote an excellent article on her Brandaide blog about the use of hashtags as trademarks and, more specifically, three tips for registering a hashtag as a trademark. To read the article, check out the article at the following link:

How To Trademark A Hashtag [Brandaide Blog]

COTTON CANDY Trademark Highlights Difference Between Descriptive, Arbitrary Marks

On March 20th, a corporation in New York filed a federal trademark application for COTTON CANDY. At first glance, one might think this trademark is merely descriptive and not capable of protection. But it's all about the related goods or services.

A merely descriptive mark "describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." TMEP 1209.01(b). Merely descriptive marks are weak trademarks. They cannot be registered on the Principal Register (where you want to be) at the U.S. Patent and Trademark Office until a showing of "acquired distinctiveness" (which is not easy). TMEP 1209.01. See TMEP 1212 for more information on acquired distinctiveness.

On the other hand, arbitrary marks are very strong trademarks. They can be registered on the Principal Register without a showing of acquired distinctiveness. An arbitrary mark is one "comprise[d] [of] 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 (e.g., APPLE for computers; OLD CROW for whiskey)." TMEP 1209.01(a).

In plain English, merely descriptive trademarks are difficult to protect and register because the law is designed to prevent one party from claiming a monopoly over a term that is used by many to describe certain goods or services. As a cotton candy vendor, imagine how difficult it would be to describe your product if you could not use the term "cotton candy." Arbitrary marks, on the other hand, are unique and stand out because they are typically used on unrelated goods or services.

In the case of the COTTON CANDY mark above, the applicant listed "[t]owels" in Class 024 as the related goods. Cotton candy is completely unrelated to towels, making this trademark arbitrary (and strong). 

This mark demonstrates the importance of considering the goods or services offered in conjunction with a trademark. If this corporation offered cotton candy (or arguably any candy) under this trademark, it would probably be merely descriptive. Offering towels transforms it into an arbitrary mark.

Note - it is also possible the COTTON CANDY mark is suggestive. A suggestive mark "when applied to the goods or services at issue, require[s] imagination, thought, or perception to reach a conclusion as to the nature of those goods or services." TMEP 1209.01(a). Use of these towels may provoke warm, fuzzy feelings like eating cotton candy. In that case, the mark could be suggestive. As far as registering this trademark with the USPTO, the distinction does not make much of a difference. Suggestive marks are also strong trademarks and can be registered without a showing of acquired distinctiveness.

SoulCycle Files Trademark Application for Yellow Wheel Design

On March 16th, the popular spinning franchise SoulCycle filed a federal trademark application for the yellow wheel seen below (they did claim yellow as a feature of the mark).

The services listed on the application are too numerous to cleanly list, but are all in Class 041 for a variety of fitness and entertainment services. Examples include "[p]hysical fitness training services...physical fitness conditioning classes...providing podcasts via video and audio in the fields of exercise..[and] the production and distribution of a television channel, in the fields of exercise fitness, wellness and personal development." The company also filed trademark applications for the same design related to a variety of fitness software in Class 009 and clothing in Class 025 on the same day.

The application lists a first use date of May 2006 [I had no idea SoulCycle has been around so long - ed.]. According to my two minute Google research, the yellow wheel adorns SoulCycle spinning bikes, storefronts, and the company's website.

Another quick search of the United States Patent and Trademark Office's website revealed the company holds 59 live trademark applications or registrations for mainly a variety of SOUL- and bike wheel related marks.

Seattle Seahawks File Trademark Application for BLUE THUNDER Drumline

Apparently seeking to maximize legal protection for the team's drumline, the Seattle Seahawks (Football Northwest, LLC technically) filed a federal trademark application for BLUE THUNDER on March 14th.

The application was filed in Class 041 for "[e]ntertainment services, namely, live musical performances by a marching band." The specimen submitted with the application (showing use of the mark in commerce) is seen below.

According to the application, the team has been using the mark at least as early as August 2004. According to the specimen, BLUE THUNDER is "not your typical drumline" and "uses a variety of rhythms and visuals, incorporating rock and roll drumming alongside drum corps style." Apparently the band does parades, parties, and corporate events as well.

If the Seahawks are successful in registering this mark, the team will obtain the exclusive, nationwide right to use the term BLUE THUNDER in relation to the services listed on the application (with few exceptions).