Posts in Trademark

While Tea Partiers generally oppose federal government intervention, a U.S. judge has agreed to referee a dispute among Florida political activists that questions whether anyone has a trademark or any other intellectual property rights to the “Tea Party” name. Given their anti-establishment fervor, one might also be surprised to hear that a Tea Party group filed for federal registration of a trademark. But in April of this year, Marylynne Cellamare filed an application for TEA PARTY in the USPTO (serial number 85011226). The Examiner rejected the mark in an Office action a month later because the mark was merely descriptive. Ms. Cellamare has not responded. And there’s an application for TEA PARTY PATRIOTS (serial 77777712) that wasn’t flat out rejected, but the Examiner did require a disclaimer to “Tea Party”. The application is now before the TTAB in opposition proceedings. There are many more of these types of applications ranging from clothing to bumper stickers to political activism.

Dilution by blurring slowly whittles away at a trademark’s distinctiveness whereas dilution by tarnishment is an attack on the reputation and positive image of a mark. Here’s the thing: dilution by tarnishment is an entirely separate analysis from your garden variety Likelihood of Confusion analysis. But before click up your heels and scream “Yahtzee!” you should know that it’s really hard to make a tarnishment argument stick so don’t get all antsy to trot this one out. The standard is all over the place because it’s typically analyzed under a state’s dilution laws (if there are any). And I hate to do that lawyer “well, it depends” thing, but in this case, a tarnishment cause of action really does depend on the jurisdiction.

On Friday, October 15, 2010 and again on Saturday, October 16, 2010, the United States Trademark and Patent Office (USTPO) played host to the National Trademark Expo. That is no typo or clerical error. Director Kappos, who was introduced by Lynne Beresford, the Commissioner for Trademarks, started the day with an address and began by welcoming everyone to the United…

After pulling a campaign commercial earlier this week after the National Football League accused him of copyright infringement by using NFL footage, U.S. Senator Russ Feingold (D-WI) made another ad fumble – infringing on a trademark owned by Americans for Prosperity (AFP). In his campaign commercial, “Hands Off,” Senator Feingold infringes on “Hands Off My Health Care,” an AFP trademark used during the debate over the federal health care legislation.

Did you know that the Tarzan yell is a registered trademark? So is the Looney Tunes theme song. And Homer Simpson’s “D’oh!” Trademarking a sound or series of sounds is really not that hard to do. The Trademark Manual of Exanimation Procedure (“TMEP”) §1202.15 tells us “A sound mark identifies and distinguishes a product or service through audio rather than visual means.” OK. That’s fairly straightforward. We all know that in order to be eligible for trademark protection, a mark has to be unique, arbitrary, or distinctive and it has to function as a source identifier. This means the consuming public will see that mark and automatically know that it is the brand for a particular product.

On September 3, 2010, IHOP IP, LLC, a Delaware limited liability company, the owner of various IHOP registered trademarks in the United States, sued the International House of Prayer alleging various trademark infringement theories. The plaintiff IHOP brings two causes of action against the defendant. The first being the claim that the defendant through the use of various IHOP marks is engaging in dilution under 15 U.S.C. 1125(c). The second claim is straight trademark infringement under 15 U.S.C. 1114. Notably, the plaintiff IHOP did not bring a cause of action alleging likelihood of confusion, which is typically a ubiquitous cause of action in these types of cases.

You have probably had circumstances when you have positively associated with a certain trademark.  Perhaps you were traveling and had the option to eat at one of several restaurants.  You might have preferred a sit-down meal, but you might have opted for McDonald’s or Burger King instead because you are familiar with what you will get, know it is going…

Classic Ink, Inc., owner of Classic Sports Logos brand apparel line and rapidly growing trademark licensing firm, secured a major legal victory in the U.S. District Court for the Northern District of Texas against American Needle, Inc., and its Red Jacket apparel business on Aug. 6, 2010. After a five-day trial, the seven-member jury returned a unanimous verdict finding American Needle and its Red Jacket apparel business infringed Classic Ink’s trademark rights. Readers may recall that just a few months ago it was American Needle that celebrated an important win, with a win over the National Football League at the United States Supreme Court. See American Needle v. National Football League.

Earlier today the Wall Street Journal gave front page space to a story relating to the United States Patent and Trademark Office. Widely regarded as one of the “papers of record” in the United States, one might expect that the Wall Street Journal had brought its considerable clout to an important issue plaguing our time, such as an horribly under funded Patent Office that is holding innovation hostage, costing America perhaps millions of jobs. NO! Don’t get me wrong, every tabloid should have front page news story about pot, medical marijuana and have an image of a VW bus over the tag “the Canny Bus,” as the Journal did earlier today. Call me crazy, but I expected more from the Wall Street Journal.

At the start of the new year I pledged that I would start to try and expand the scope of IPWatchdog.com to touch upon intellectual property matters outside the United States. In part this means trying to add an international flavor where appropriate, which is certainly always possible in part through discussion of the Patent Cooperation Treaty (PCT). In another facet it means profiling interesting stories relating to foreign intellectual property laws.

The reality is that individuals and companies fuel the piracy market. Simply stated, if there were no demand there would be no supply, so it is quite disingenuous for us to only point the finger at the supplier, but rather we ought to acknowledge that there is plenty of blame to go around, which may be a hard pill to swallow. And while there may an intellectual distinction between sharing software or music with a friend or family member, there exists a cultural indifference that borders on contempt for the rights of creators.

from the business perspective when you are building a trademark or trademark portfolio it is really the good will that will define the value of the trademark. But like most things in life there is a double edge sword. There is positive good will and negative good will. Negative good will sounds silly I know, but it relates not to the absence of good will, but negative feelings. So, for example, BP is in the process of developing enormous negative good will as a result of the oil spill in the gulf of Mexico.

For 2010 the US Trade Representative reviewed 77 trading partners for this year’s Special 301 Report, and placed 41 countries on either the Priority Watch List, Watch List, or the Section 306 monitoring list. The Priority Watch List for 2010 names the following countries:China, Russia, Algeria, Argentina, Canada, Chile, India, Indonesia, Pakistan, Thailand and Venezuela.

Apple is capitalizing on what would appear to some as Microsoft “crying wolf” syndrome and putting into question whether the new operating system can be trusted because its issues have not been effectively resolved by any of the previously released PC Operating Systems thus far. These ads are brilliant!

The United States Supreme Court earlier today announced that they will not accept the appeal in the Harjo case, which means that the decision of the the United States Court of Appeals for the District of Columbia will stand as the final decision in the long dispute that sought to strip the team of its trademark as a result of the term “Redskin” being offensive and not susceptible of receiving trademark protection.