Creators of "Damn, Daniel" Meme File Trademarks For DAMN DANIEL Phrase

You may have heard about the viral "Damn, Daniel" meme that broke the internet over the last two weeks. The video, which is only 30 seconds long, features Josh Holz filming his friend Daniel Lara in a variety of outfits and exclaiming "Damn, Daniel" over and over again. Josh also uses the now popular phrase "back at it again with the white Vans" in response to Daniel's shoes. The two friends are sophomores at Riverside Polytechnic High School in California.

Apparently, the popularity of the video (the friends even appeared on Ellen recently) led the two teens to file federal trademark applications for the phrase DAMN DANIEL in the United States Patent and Trademark Office on February 24th (with the help of attorneys at Varner & Brandt, LLP).

The teens filed one application in Class 041 for "[e]ntertainment in the nature of viral video media, namely, online videos broadcast through social media networks" and the other in Class 025 for "[c]lothing items, namely, t-shirts, hats and shoes." The application in Class 025 was filed on an intent-to-use basis (meaning the teens are not using the trademark on those goods yet but have a bona fide intention to do so soon) but the application in Class 041 is based on actual use in commerce, with a first use date of February 15, 2016 (the date Josh posted the video on Twitter).

The specimen submitted with the application in Class 041 is seen above. 

If successful in obtaining these federal trademark registrations, the teens will obtain the exclusive, nationwide right to use the term DAMN DANIEL on goods or services related to those listed on their applications. Whether those rights are enforced by the teens is yet to be seen. Given the viral nature of the video, I have a feeling enforcing them will not be easy.

Travel to the St. Thomas for SCOOPS & BREW

Next time you're in St. Thomas and have a craving for coffee and ice cream at the same time, stop by Scoops & Brew.

On February 22nd, the individual who owns the restaurant/coffee/ice cream shop filed a federal trademark application for the design mark seen above in Class 043 for "combination coffee bar and ice cream shop, and coffee and ice cream shop services in the nature of a restaurant." [I was hoping the "Brew" stood for beer, but coffee will do - ed.]. This trademark application, if it registers, will give the applicant the exclusive, nationwide right to use the logo above on coffee and ice cream shop related services.

According to the trademark application, the restaurant first started using this trademark on October 24, 2014. And after looking at their website, it looks delicious.

Crocs Files Trademark Applications For Shoe Designs...But Are They Functional?

On February 19th, Crocs, Inc. filed two federal trademark applications in the United States Patent and Trademark Office (USPTO) for the shoe designs seen below, each in Class 029 for "footwear." These applications can be found here and here.

As far as I can tell, this is the first time Crocs has attempted to obtain trademark protection for the look of its shoes. The broken lines show portions of the shoe that are not claimed as part of the mark, so it appears Crocs is attempting to claim most of the shoe (as seen above) but if that doesn't work, claim only certain parts of it (see below).

As I blogged about before, the design of a product is generally registerable as a trademark as long as it is not functional. To determine whether an article is functional, and thus not protectable as a trademark, the USPTO will consider the following factors:

1. the existence of a utility patent that discloses the utilitarian advantages of the design sought to be registered;
2. advertising by the applicant that touts the utilitarian advantages of the design;
3. facts pertaining to the availability of alternative designs; and
4. facts pertaining to whether the design results from a comparatively simple or inexpensive method of manufacture.

See TMEP 1202.02(a)(v). Crocs will need to prove to the USPTO that the portions of the shoe design claimed in these trademark applications are not functional aspects of the shoe. Claiming something like a shoe design is not functional is probably more difficult than claiming the highly decorative aspects of a beer tap are not (as with the Shock Top mark). Crocs may be in for a battle with the USPTO.

Although not exactly the same situation, Louboutin was successful in registering and protecting the red sole of its shoes as a trademark.

Ohio State University Files Trademark Application to Protect Jersey

The Ohio State University is aggressive about protecting its trademark rights and holds 111 live applications or registrations with the United States Patent and Trademark Office. The University also claims ownership of a broad range of unregistered common law trademarks (I know from personal experience, having represented a client who received a cease and desist letter from them).

On February 18th, the University filed its most recent federal trademark application, which seeks protection for the design elements of the football jersey seen below. It was filed in Class 025 for "[c]lothing, namely, football jerseys."

The application claims the colors red, black, and white as a feature of the mark, and it describes it as "a two-dimensional representation of the mark, which consists of the design elements and color combinations appearing on a three-dimensional scarlet or red football jersey with the stripe pattern on both sleeves." According to the application, this jersey has been in use since at least September 22, 1979.

How can a university claim trademark protection for a simple looking jersey? By showing that the jersey has become distinctive through the university's exclusive and continuous use of the mark for decades. Essentially, that means the University is claiming that the jersey does not just depict a red, black, and white jersey, but it depicts a jersey that is so well known it is associated with the University. If a descriptive trademark acquires this distinctiveness, it is capable of obtaining a federal trademark registration.

The recent trademark application is not the first filed by Ohio State to protect its uniforms. The University obtained trademark registrations for the uniform designs above in 2015. In those applications, the University successfully claimed the uniforms had acquired distinctiveness and were thus capable of trademark protection.

The University appears hopeful that a claim of acquired distinctiveness will also protect its most recent jersey filing.

Frontier Airlines Files Trademark Applications for Tail and Rudder Designs

If you've been to an airport recently, you may have seen bears, wolves, rams, deer, eagles, or other animals on the tail and rudder of a Frontier Airlines' aircraft. The airline regularly incorporates wildlife photographs onto the tail of its planes. According to recent filings at the United States Patent and Trademark Office, the airline is also seeking federal trademark registrations for the same.

On February 17th, Frontier Airlines, Inc. filed three federal trademark applications for polar bears (seen above), an orca whale (seen below), and a buffalo, each in Class 039 for "[a]ir transportation services, namely the transportation of cargo, freight and passengers."

These applications are for design marks consisting of "a live-action photograph of a wild animal printed on both sides of the upright sections of the tail and rudder." According to the applications, Frontier is already using these trademarks in commerce, so there are likely planes already in the fleet with these designs.

Frontier also has five other federal trademark registrations for similar tail and rudder designs. The existing trademark registrations are for bunnies, wolves, polar bears (in the form of a different photograph), a lynx, and a brown bear. By securing these registrations, Frontier is effectively prohibiting any other airline from displaying similar designs on the tail of its aircraft.

Apple Files Trademark Applications for SMART CONNECTOR Interface

On February 13th, Apple, Inc. filed federal trademark applications for SMART CONNECTOR and APPLE SMART CONNECTOR in Class 009 for "electrical and electronic connectors; electronic connectors for handheld mobile digital electronic devices and keyboards." These applications refer to the new design interface that allows communication between Apple's Smart Keyboard and the iPad Pro, as seen below.

These trademark applications are not to be confused with patent applications. Trademarks will only protect the terms SMART CONNECTOR and APPLE SMART CONNECTOR as used on electronic connectors. In other words, it would prevent another person or entity from using a term similar to "Smart Connector" to describe some sort of electronic connector. It does not protect the way the Smart Connector works. A patent application is required for that.

These two applications bring the total number of federal trademark applications filed by Apple, Inc. to 936 (that's a lot of filing fees), with 716 of these filings still being active (applications not yet registered plus registrations), and 553 live, registered trademarks. That's quite a portfolio.

ANOTHER ONE - DJ Khaled Files 9 Federal Trademark Applications

A couple weeks ago, I blogged about DJ Khaled filing a federal trademark application for WE THE BEST related to music recordings and entertainment services. The phrase is commonly used by the artist to promote himself, namely on social media.

Those of you who follow DJ Khaled on social media know WE THE BEST is only one of the phrases the DJ uses to promote himself. On February 12th, he filed 9 other federal trademark applications for his other common phrases, seen below, including KEYS TO MORE SUCCESS, ANOTHER ONE, and BLESS UP.

The first three marks seen above were filed in Class 041 for a variety of entertainment and education services. The last seven applications were filed in Class 025 for "[s]hirts, tops, headwear, and footwear" (the application for ANOTHER ONE was filed in both Class 041 and Class 025).

According to the applications, DJ Khaled is currently using all of these trademarks in commerce, with the earliest date of use being 2003 (for KEYS TO MORE SUCCESS) and the most recent date being just December of last year (for most of the applications in Class 025).

DJ Khaled even went so far as to file a trademark application the emoji key seen above in Class 041. The specimen of use for that trademark (i.e. evidence showing use of the mark in commerce) is shown below.

As with his previous trademark application in late January, all these applications were filed by Sedlmayr & Associates. If the applications filed by DJ Khaled mature into registrations, he will obtain the exclusive, nationwide right to use the terms (and emoji "key") on the goods and services listed in the respective applications. And that's a major key to success.