General Motors Files 3 Trademark Applications Covering Computer Software For Autonomous Driving of Vehicles

On August 1st, General Motors, LLC filed three federal trademarks applications in Class 009 for "[c]omputer software for the autonomous driving of motor vehicles." The company filed all three applications on an intent-to-use basis, meaning the company is probably not using these marks in commerce just yet (but has a bona fide intention to do so sometime in the near future).

The applications are for the C-design seen to the right, the CRUISE-design seen below, and the phrase JOIN THE DRIVERLESS REVOLUTION.

Back in April 2016, GM filed another trademark application for the word CRUISE as it relates to the same software services in Class 009. In June 2016, the company filed an application for SUPER CRUISE in Class 009 for "[c]omputer software, cameras, ultrasonic sensors, global positioning system and radar object detectors for semi-autonomous driving of motor vehicles[.]"

These applications come after GM announced in March that it purchased Cruise Automatic, a San Francisco start-up that develops self-driving technology. Is CRUISE the name of GM's self-driving program? Keep track of these trademark applications to find out.

Is JUMBO JUICE for Beer Likely to Cause Confusion with JAMBA JUICE for Smoothies?

Trademark applications for beers are some of the most common trademark applications these days. Almost every day multiple applications are filed for the delicious beverage. July 30th was no different. On that day, a brewery in Washington filed a federal trademark application for JUMBO JUICE in as it relates to a variety of beers in Class 032.

Does JUMBO JUICE remind you of a particular smoothie company? Jamba Juice, maybe? Is the similarity enough to cause a likelihood of confusion between the marks? If so, the U.S. Patent and Trademark Office (USPTO) could refuse to register JUMBO JUICE due to Jamba Juice Company's pre-existing registration for JAMBA JUICE in Class 032 for "fruit and vegetable juices, drinks and smoothies[.]"

When determining whether two marks are similar enough to result in a likelihood of confusion, the USPTO will examine the several factors set forth in In re E.I. du Pont Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (C.C.P.A. 1973). Although that case set forth multiple factors, the two key factors are (1) the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression and (2) the relatedness of the goods or services as described in the application and registration(s).

In this case, there's no question that JUMBO JUICE and JAMBA JUICE are very similar in their appearance. The only difference between the marks is one letter. Arguments can be made that the sound and commercial impression are different, but I think this factor would weigh in favor of finding a likelihood of confusion.

However, the key factor in this analysis will be the relatedness of beers and smoothies. In determining whether particular goods or services are related, "[i]t is sufficient that the goods and/or services of the applicant and the registrant are related in some manner or that the conditions surrounding their marketing are such that they are likely to be encountered by the same persons under circumstances that, because of the marks used in connection therewith, would lead to the mistaken belief that they originate from the same source." TMEP 1207.01(a)(i).

What do you think? Would you be confused as to whether JUMBO JUICE is a beer sold by Jamba Juice? 

I don't think so. It's not often you see beer and smoothies marketed together or sold by the same company. These are two distinct types of goods marketed in different ways and under different circumstances. 

While the USPTO has found beer and wine related enough to support a likelihood of confusion (partly because they are both sold in liquor stores), I am not aware of the USPTO drawing the same line between smoothies and beer. Thus, I do not think the USPTO will cite Jamba Juice's registration against JUMBO JUICE.

Company in Florida Files Trademark Application for "Life Force Infused" Water

One of the perks of searching the U.S. Patent and Trademark Office's (USPTO's) trademark database almost every day is getting to see a variety of interesting and unusual trademark applications. A federal trademark application filed for LOVE & LIGHT on July 28th by a company in Florida is one of those applications.

The mark itself, LOVE & LIGHT, is not unusual. It is the goods listed in the application that raise an eye. The applicant filed this application in Class 032 for "Bottled Drinking Water infused with life force energy." Life force energy? I'm not sure what that is. But it seems like something a company called "Universal Time Corporation" would file.

So is a trademark applicant allowed to list anything in the "Goods and Services" part of the trademark application? Pretty much. The law only requires that the identification of goods and/or services "be specific, definite, clear, accurate, and concise." TMEP 1402.01.

That being said, to qualify for federal trademark registration, the use of the mark in commerce must be lawful. See TMEP 907. Under 37 C.F.R. §§2.61(b) and 2.69, examining attorneys can require additional information about the goods or services to determine compliance with federal law. If the record indicates that the mark or the goods/services violate federal law, a refusal to register the mark can be made. Applicants for marijuana related services are running into this problem, even if operating in states where marijuana sales are legal, because sale of the plant is still prohibited under the federal Controlled Substances Act, 21 U.S.C. §§801-971.

Is the sale of "life force infused" goods illegal? I don't think so. This applicant previously registered its business name, UNIVERSAL TIME, as it relates to the same life force infused energy water without any issue. Additionally, the USPTO does not "regard apparent technical violations, such as labeling irregularities on specimens, as violations." TMEP 907.

That leaves it up to the consumer to determine if buying "Bottled Drinking Water infused with life force energy" a good investment. I think I'll pass.

OPRAH'S TABLE - Oprah's New Line of Food Products?

Earlier this summer, several websites reported that Oprah Winfrey had filed trademark applications for OPRAH'S related to a variety of food products, suggesting that Oprah would be launching a food line sometime in the future. On July 27th, she took another step in that direction and filed four trademark applications for what might be the actual name of her food line - OPRAH'S TABLE.

The applications were filed by Oprah's Kitchen, LLC and cover a variety of food products, including bottled drinking water, coconut water, and energy drinks (in Class 032); cut flowers, fresh fruits, fresh vegetables, and pet food (Class 031); bakery goods, pasta, and chocolate (Class 030); and almond butter, dairy-based beverages, and soups (Class 029).

Oprah's consent to register these marks, required under 15 USC 1052(c), was submitted with the applications (see above). See also TMEP 1206.

Oprah filed each application on an intent-to-use basis, meaning she is not using the trademarks in commerce yet but has a bona fide intention to do so in the near future. Should the celebrity be successful in registering these marks, she would obtain nationwide rights to the term OPRAH'S TABLE as it relates to a wide range of food products, paving the way for the launch of her potential food line.

Jamba Juice Attempts to Register BANANA BERRY SMOOTHIE As Trademark for Smoothies

In a somewhat bold move, the Jamba Juice Company filed a federal trademark application for BANANA BERRY SMOOTHIE on July 20th.

Jamba Juice filed the application in Class 032 for "Fruit juices and fruit drinks; vegetable juices and vegetable drinks; fruit and vegetable smoothies." The application lists a first use date of July 4, 2004.

Typically, such a mark would be considered merely descriptive because it describes "an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." TMEP 1209.01(b). Merely descriptive words and terms usually cannot be registered as trademarks (on the Principal Register at least). 15 U.S.C. 1052(e)(1).

Jamba Juice, however, is claiming that BANANA BERRY SMOOTHIE has acquired distinctiveness. If a merely descriptive mark acquires distinctiveness, it can be registered as a trademark. What does it mean to acquire distinctiveness? It means the mark, "through usage by one producer with reference to his product, acquire[s] a special significance so that to the consuming public the word has come to mean that the product is produced by that particular manufacturer." See TMEP 1212. 

In other words, Jamba Juice is claiming that when a consumer sees the mark BANANA BERRY SMOOTHIE, it associates the smoothie with Jamba Juice. This is a difficult claim to make, and the burden will be on Jamba Juice to make it. If the Examining Attorney at the Trademark Office does not accept Jamba Juice's 2(f) (aka acquired distinctiveness) claim on its face, Jamba Juice will need to submit evidence showing consumers associate the term with Jamba Juice. In general, "more evidence is required where a mark is so highly descriptive that purchasers seeing the matter in relation to the named goods or services would be less likely to believe that it indicates source in any one party." TMEP 1212.01.

In other words, Jamba Juice may have a difficult battle in front of it. But it is using a large and very skilled law firm, so it will be interesting to see how this one turns out. If Jamba Juice is successful in registering this term, it will obtain exclusive rights and can [attempt] to prevent other businesses from using anything similar to BANANA BERRY SMOOTHIE in relation to smoothies (which will make for interesting and challenging enforcement issues).

Is MY TAMAGOTCHI FOREVER the Next Pokémon Go?

The success of Pokémon's revitalization through the extremely popular Pokémon Go app might be spurring the redevelopment of another 1990's classic - the Tamagotchi.

On July 15th, Kabushiki Kaisha Bandai (a Japanese toy company that owns the original TAMAGOTCHI trademark registrations from the 90's), in conjunction with WiZ CO., LTD. (what appears to be a Japanese toy and mobile content development company), filed a federal trademark registration for MY TAMAGOTCHI FOREVER. The companies filed the application in two different classes for the following goods and services:

• Class 009 for "Computer game programs; computer game software; interactive multimedia computer game programs; downloadable computer game software used and played on mobile and cellular telephones, handheld computers, handheld consoles, home consoles, personal computers and personal digital assistants; downloadable computer game programs; downloadable computer game software via a global computer network and wireless devices; video game software;" and

• Class 041 for "Entertainment services, namely, providing non-downloadable computer games that may be accessed network-wide by network users via mobile phones and computers; providing non-downloadable computer games via network between communications networks and computers."

Both classes were filed on an intent-to-use basis, meaning the companies are [probably] not using MY TAMAGOTCHI FOREVER in commerce yet, but have a bona fide intention to do so in the near future.

The goods and services listed in this application sound a lot like some sort of mobile game. Will we soon be able to care for Tamagotchis on our mobile phone like we did on those rudimentary plastic eggs in the 90's? Will the app incorporate augmented reality like Pokémon Go? Will we see MY TAMAGOTCHI FOREVER in the App Store soon? Only time will tell.

Jon Taffer of Bar Rescue Files Trademark Application for "Shut It Down" Sound Mark

Fan's of Spike TV's Bar Rescue know Jon Taffer's infamous "Shut It Down!" phrase. Whenever a bar is descending into chaos, the show's host shouts the phrase at the bar staff.

If you wanted a button that proclaims "Shut It Down!" for yourself, Jon Taffer appears to be selling one. He also claims trademark rights in the phrase (as it relates to toy buttons, at least).

On July 14th, Jon Taffer, LLC filed a federal trademark application for a sound mark consisting of the spoken words "Shut It Down." The host's business entity filed the application in Class 028 for "toys, electronic novelty push button with sound." The first use date is listed as December 2015. You can listen to the sound bite submitted with the trademark application here.

As I've blogged about before, sounds can serve as trademarks if they identify the source of a good or service and are not sounds goods make in their normal course of operation (with a few exceptions). The Trademark Manual of Examining Procedure provides "[s]ound marks 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. Along with a trademark application for a sound mark, an applicant "must submit a specimen that contains a sufficient portion of the audio or video content to show how the mark is used on or in connection with the goods/services..." TMEP 904.03(f).

According to my quick search, Jon Taffer, LLC owns 38 other live trademark applications or registrations with the U.S. Patent and Trademark Office, but this is the first sound mark filed by the celebrity.