Evan McMullin Files Trademark Application for Presidential Campaign Logo

Just two days after announcing his independent bid for the White House, Evan McMullin's attorneys filed a federal trademark application for his campaign's logo (see below).

The campaign filed the application in Class 035 for "[p]olitical campaign services, namely, promoting public awareness of Evan McMullin as a candidate for public office; providing online information regarding political issues and the 2016 presidential election." The first use date for the mark is August 8, 2016 (the day Mr. McMullin announced his bid).

According to reports, Evan McMullin is a former CIA agent who thinks Donald Trump is going to lose the election. He is running as an independent candidate.

Given that most trademark applications take about 3 months before they are assigned to an examining attorney at the U.S. Patent and Trademark Office, and that it takes approximately 9-12 months for a trademark to register if all goes well, I doubt this mark will ever make it to registration (and will likely be abandoned by the campaign on a later date).

A Pabst Brewing Company Restaurant? Maybe, Based on Recent Trademark Application

Do you love the taste of a cold PBR? Do you think it tastes like George Washington going down your throat to fight the Redcoats? Do you love it so much you wish Pabst had its own restaurant so you could enjoy its food while drinking its beer? If so, you might be in luck.

On August 3rd, the Pabst Brewing Company filed a federal trademark application for PABST in Class 043 for "[r]estaurant services." The company filed this trademark application on an intent-to-use basis, which indicates it is not using the mark in conjunction with these services in commerce yet, but has a bona fide intention to do so in the near future. In other words, the Pabst Brewing Company is potentially considering opening a restaurant under the PABST name.

According to my quick search of the U.S. Patent and Trademark Office database, Pabst Brewing Company owns 271 live trademark applications or registrations, although this one is the first one for PABST as it relates to restaurant services.

Today's Tip For Saving Your Trademark Filing Fee - Avoid Ornamental Use

Not everything can be registered as a federal trademark. Some registrations are refused registration due to statutory bars, such as marks that are likely to cause confusion with pre-existing marks and marks that are merely descriptive, while others simply do not function as trademarks.

Because the U.S. Patent and Trademark Office (USPTO) can only register "trademarks" (i.e. designations that indicate the source of a good or service), it will refuse registration to anything that does not indicate source and therefore does not function as a trademark.

A good example of a mark that is almost certain to be refuse registration for not functioning as a trademark is the mark seen above, filed by an individual in Washington on August 2nd. The goods listed on the application are "[v]inyl static cling decals on which warnings are printed for affixation [sic?] to windows" in Class 016.

Slogans or phrases, such as the one seen above, are generally refused registration as being merely ornamental rather than a trademark because "purchasers will perceive [the goods] as conveying a message rather than indicating the source of the goods." TMEP 1202.03(f)(i).

I commonly see this problem on applications for slogans on t-shirts. Most applicants want to register a big phrase or design on the front of a shirt. But as far as clothing goes, "small, neat, and discrete word[s] or design feature[s] may be likely to create the commercial impression of a trademark, whereas a larger rendition of the same matter emblazoned across the front of a garment...may be perceived merely as a decorative or ornamental feature of the goods." TMEP 1202.03(a). That's why you see companies like Nike and Ralph Lauren place small logos on the breast or arms of shirts.

If you saw a vinyl sticker with the phrase "DON'T BOTHER! EVERYTHING OF VALUE HAS BEEN REMOVED FROM THIS VEHICLE IT'S NOT WORTH IT!" would you perceive that phrase as conveying a message or indicating from whom the sticker originated?

If you said a message, I think you're right. In approximately three months when this application is assigned to an examining attorney in the USPTO, I think they will agree and refuse to register this mark for being ornamental and failing to function as a trademark as required by 15 U.S.C. 1051, 1052, and 1127. Unfortunately for the applicant, that means his $275 nonrefundable filing fee is all but lost.

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.