Amazon Files Trademark Applications For Wind, Solar Farm Logos

According to Amazon Web Services, Amazon is rolling out multiple wind and solar farms in 2016 and 2017. The energy generated from these farms is more than 1.6 million MWh, or enough energy to power about 150,000 U.S. homes.

In an effort to obtain more legal protection for the farms' logos, Amazon Technologies, Inc. filed two federal trademark applications on April 8th - one for the Amazon Wind Farm logo and the other for the Amazon Solar Farm logo (both seen below).

Amazon filed each trademark application in three classes:

• Class 035 for "[a]dvertising; promoting the use of solar farms" and "[a]dvertising; promoting the use of energy from wind turbine farms," respectively;
• Class 040 for "[g]eneration of energy from solar farms" and "[g]eneration of energy via wind turbine farms," respectively; and
• Class 042 for "[c]omputer services; variable computing capacity services; application service provider, namely, providing, hosting, managing, developing and maintaining applications, software, websites and databases in the fields of ecommerce, online payments, order queuing, website design, data storage and shared computing capacity scaling services."

For more information on these farms, check out Amazon's sustainability page at this link.

Today's Tip For Saving Your Trademark Filing Fee - Avoid Descriptive Trademarks

In another perfect example of what not to do, a company in Washington D.C. filed a federal trademark application on April 6th for SNACKABLE GRANOLA. The related goods are listed as "Granola; Granola snacks; and Granola-based snack bars" in Class 030.

The problem? The trademark is merely descriptive of the underlying goods. Trademarks that are merely descriptive will be refused registration on the Principal Register under Section 2(e)(1) of the Trademark Act. A trademark is merely descriptive "if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." TMEP 1209.01(b).

Certainly the phrase SNACKABLE GRANOLA describes an ingredient and characteristic of "granola snacks" and "granola-based snack bars." Even the specimen submitted with the application, seen above, shows the purported trademark in an area on the packaging that is more likely to describe the actual goods. While "Oh-Mazing!" could be considered a trademark, the phrase "snackable granola" simply indicates what is inside the package.

While there is an exception to the rule that merely descriptive trademarks cannot be registered on the Principal Register, that exception requires substantial, continuous, and exclusive use in commerce, which does not apply here (the first use date is listed as February 26, 2016). See TMEP 1212 for more on acquired distinctiveness. 

Unfortunately for this applicant, who did not use a trademark attorney, the $225 filing fee submitted with this trademark application is all but lost.

Is Michael Kors Developing a Smart Watch?

A recently filed federal trademark application might suggest Michael Kors is getting into the smart watch business. On April 4th, the fashion company filed a federal trademark application for MICHAEL KORS as it relates to a variety of smart watch goods and services, including:

• "Wireless communication devices featuring telecommunication functionality to allow the transmission of text, data, audio, image and video files; electronic monitoring devices comprised of microprocessors and accelerometers, for identifying, storing, reporting, monitoring, uploading and downloading data and information for personal physical fitness and training purposes; downloadable mobile applications and software for smart watches and mobile devices for processing, reviewing and editing data to enable users to control the presentation and information available from the devices; wearable sensors for personal physical fitness and training purposes to gather biometric data and also including monitors and displays sold as a unit" in Class 009;
• "Wearable sensors for health and wellness purposes to gather biometric data and also including monitors and displays sold as a unit" in Class 010;
• "Smart watches comprised primarily of wristwatches and also featuring software for sending and receiving data or to be used to monitor personal fitness activity; horological and chronometric instruments, watches, timepieces, watch straps, watch bands; jewelry; wearable digital electronic devices comprised primarily of wristwatches, bracelets, rings, or necklaces and also featuring software for sending and receiving data or to be used to monitor personal fitness activity" in Class 014; and
• "Software as a service featuring software to identify, store, report, monitor, upload and download data and information from a wearable digital electronic device" in Class 042.

A trademark application covering goods or services related to the sale of bands for smart watches would not surprise me, as other fashion brands are doing the same, but this trademark application seems to cover the actual smart watch itself. 

While the intent-to-use filing basis of this application does not guarantee that Michael Kors will be coming out with smart watches (see another post on the intent-to-use basis), it does indicate that the company has a bona fide intention to do so.

PICKLEBALL JUNKIE Trademark Application in a Pickle

One of the most common trademark application mistakes I see, usually by pro se applicants, is filing a trademark application for a phrase on the front of a shirt. That is exactly what a North Carolina corporation did on April 3rd when it filed a federal trademark application for PICKLEBALL JUNKIE. The applicant listed "[a]thletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, [and] athletic uniforms" in Class 025 as the related goods.

The applicant submitted a picture of the t-shirt seen above as its specimen of use. However, phrases on the front of shirts are almost never function as a trademark because they are considered purely decorative (rather than indicating source). The Trademark Office explains "[s]ubject matter that is merely a decorative feature does not identify and distinguish the applicant's goods and, thus, does not function as a trademark." TMEP 1202.03.

Specifically relating to apparel, the Trademark Office has said "[s]logans or phrases used on items such as t-shirts and sweatshirts...have been refused registration as ornamentation that purchasers will perceive as conveying a message rather than indicating the source of the goods." TMEP 1202.03(f)(i).

So how does one protect a clothing related trademark? The Trademark Office again provides some insight - "[a] small, neat, and discrete word or design feature (e.g., small design of animal over pocket or breast portion of shirt) may be likely to create the commercial impression of a trademark..." TMEP 1202.03(a). Additionally, a trademark appearing on the tag of a shirt also typically functions as a trademark. See TMEP 904.03(a). I have blogged about trademarks on clothing before here.

The Trademark Office will not refund filing fees for applications refused registration as ornamental or decorative matter and the $225 filing fee the applicant paid for the PICKLEBALL JUNKIE application is probably lost as well. All the more reason to speak with a trademark attorney before filing a trademark application.

Side note - what is pickleball?

Netflix Files Trademark Application For Title Screen Sound

If you binge watch Netflix like I do, you know the "da dum" sound that plays when the Netflix title screen appears. Apparently, in musical terms, that is a sound "comprising [of] two sixteenth note timpani strikes on D2 and D3, simultaneously which with are played three dotted half notes on D2, D4, and D5" and Netflix just filed a federal trademark application to protect it.

For those of you who are not familiar with the sound, the video above is the specimen Netflix submitted with its trademark application.

Just like names and logos, sounds are also capable of serving as trademarks if they identify the source of a good or service. Sound marks "function as source identifiers 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." See TMEP 1202.15; In re Gen. Electric Broad. Co., 199 USPQ 560, 563 (TTAB 1978). Sounds can generally be registered as trademarks when they are arbitrary, unique, or distinctive. However, commonplace sounds or sounds goods make in their normal course of operation (like alarm clocks, telephones, etc.) cannot be registered unless they acquire distinctiveness in the marketplace.

In this case, Netflix is seeking protection of the sound above as it relates to entertainment and streaming services in both Class 038 and Class 041. According to the trademark application, Netflix first started using this sound in commerce on February 27, 2015.

If this application matures to a registration, Netflix will obtain the exclusive, nationwide right to use this sound in conjunction with the services listed in its trademark application.

NBCUniversal Files Trademark Application for SONGLAND

The network that broadcasts the popular singing competition The Voice recently filed a federal trademark application for what might be another music-related show. On March 30th, NBCUniversal Media, LLC filed a federal trademark application for SONGLAND.

The services listed on the application are in Class 041 for "[e]ntertainment services in the nature of a television series featuring music, artists and entertainment." NBCUniversal filed the trademark application on an intent-to-use basis, so a specimen showing use of the mark in commerce was not submitted with the application.

Does this mean NBC will be airing a show called SONGLAND? Maybe. Filing an intent-to-use application requires a "bone fide" intention to use the mark in commerce. This means something more than a mere idea to use the mark exists. It could be the development of marketing plans, a script, signing contracts with talent, etc. However, despite the filing, NBCUniversal is not required to use the mark in the future. Thus, while an intent-to-use trademark applications seems to indicate the applicant will be using the trademark at some point, it does not guarantee such use.

Vintage Baywatch Trademark Filed As New Movie Develops

Baywatch is getting a reboot in the form of a movie with the likes of The Rock and Zac Efron, but the most recent trademark application filed by The Baywatch Production Company, Inc. actually relates to the original show. On March 28th, that company filed a federal trademark application for the logo seen below.

The services listed in the application are in Class 041 for "[e]ntertainment in the nature of an ongoing television series in the field of action adventure." At first glance, I suspected the filing may be related to the movie, but the specimen submitted with the application (seen below) indicates otherwise.

Although this logo relates to current airings of the original show, the first use date for this logo is listed at August 1, 2015 in the application, suggesting that this logo has only been used to promote the original show since late last year. As the new Baywatch movie gets closer to its premiere, expect to see more Baywatch-related trademark filings with the USPTO.