What’s Fair in Concept and Theme Marks – An Analysis of The Second Circuit Opinion in Kelly-Brown v Oprah Winfrey

Posted by on Jun 8, 2013 in Blog | 0 comments

The 2nd Circuit Court of Appeals handed down a ruling on May 31 that answers several questions about fair use and a few other heretofore open questions that will certainly raise some eyebrows among the trademark bar.  The case is Kelly-Brown v. Winfrey, 2d Cir., No. 12-1207-cv, 5/31/13.  Appellant owns the registered trademark shown here:       In its opinion the Court states in the Background section: “Kelly-Brown owns a...

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How To Trademark Band Names

Posted by on Apr 27, 2013 in Blog | 0 comments

This is a follow-up to the post on registering author and performer names.  Because I realized that someone might read that post and mistakenly think that the limitations described therein would apply in the case of the name of a group or band which just happens to also be the name of a person in the band (or even a fictitious name), I want to correct that incorrect (but logical) assumption.  Registering band names is straightforward and there...

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The Trouble With Trade Dress

Posted by on Mar 8, 2013 in Blog | 0 comments

In my opinion, trade dress law suffers from some judicially imposed restrictions that do not consider marketplace realities.  One example of this is that in order to protect your trade dress you first have to define it for the court.  Sometimes this is a difficult task but not insurmountable, given enough imagination and literary prowess.  Take the following trade dress for “Flying Dog” beer for example:   How would you...

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Trademark Use

Posted by on Feb 26, 2013 in Blog | 0 comments

In trademark law, there is a difference between the rules concerning registration of trademarks and the rules that govern actions under the common law (whether by way of assertion of common law trademark rights or by actions pursuant to Section 43(a) of the Lanham Act, sometimes referred to as the federal “unfair competition” statute).  There are certain strict rules that govern trademark registration that simply do not apply in...

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Bronx Bombers Rule The Evil Empire

Posted by on Feb 21, 2013 in Blog | 0 comments

No, I’m not a Red Sox fan, but merely reporting on an interesting case from the TTAB.  The New York Yankees filed an opposition to an individual’s trademark application for BASEBALLS (sic) EVIL EMPIRE and won.  The interesting thing here is that the Yankees have never used EVIL EMPIRE as a trademark or in any other way.  Nonetheless, trademark law has on occasion ignored the fact that someone doesn’t technically own a...

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An Exclusive Scoop!!

Posted by on Feb 12, 2013 in Blog | 0 comments

                    Izzy’s Ice Cream has registered trademarks for The Izzy Scoop® and for the following “trade dress”:             According to their website, they are more than happy to license you so that you can put a small scoop of ice cream on your cone (commercially of course…although you should feel free to try this at home, I would...

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How To Trademark Author Names and Artist Names for Books and Recordings

Posted by on Jan 30, 2013 in Blog | 0 comments

If you are an author, artist, or a performer of some type (e.g. a recording artist) and you want to register your name or pseudonym as a trademark, that probably seems like a reasonable thing for you to do.  After all, your name tells the public something very important about your work, whether it be a book, a music CD, a work of art or some other artistic or literary creation. Unfortunately it’s not so simple.  This has nothing to do...

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How To Get a Registered Trademark – Words or Design?

Posted by on Jan 11, 2013 in Blog | 0 comments

One of the most misunderstood concepts in trademark registration law is the legal difference between a “standard character” trademark registration for words, letters, numbers, and certain symbols (punctuation, etc.) recognized by the USPTO as standard characters, or combinations thereof, and a “special form” trademark registration that includes any of the aforementioned standard characters. Although the USPTO uses the above terminology, I will...

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A Taste of Chocolate Predicts One of the Biggest Trademark Damage Awards of All Time

Posted by on Jan 9, 2013 in Blog | 0 comments

On Nov. 2, 2012, Mixed Chicks LLC, a small company that makes specialized hair care products for women of mixed race, won a jury award of more than $8 million in a trademark and trade dress dispute with a multimillion-­dollar beauty supply company. Sally Beauty Supply LLC, the world’s largest retailer of professional beauty supplies, agreed last month to pay $8.5 million to Mixed Chicks after the California jury found Sally Beauty had infringed...

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Best Buy Sings Blues

Posted by on Jan 4, 2013 in Blog | 0 comments

An interesting dispute caught my attention recently while perusing the publicly available database of TTAB proceedings (hey, don’t judge me). It seems that one of Best Buy’s claimed trademarks is the color of the shirts worn by its in-store employees based on twenty years of use.  Best Buy also claims that these workers have become known both inside and outside of the company as (appropriately enough) “Blue Shirts”....

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Photographs As Trademarks or “Can I ‘Trademark’ a Photograph of Myself?”

Posted by on Jan 3, 2013 in Blog | 0 comments

When one thinks about a trademark, things like words and logos typically come to mind.  What about photographs? Can these be trademarks? Can you think of any that are famous trademarks?  One that may come to mind, although it may not actually be a photograph, is the Gerber baby.  Even if it is not a true photograph, what if it was?  Should that change the fact that this is without a doubt a well known trademark.  Most would say no, and...

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Merely Ornamental and Non-Distinctive Trade Dress Refusals – A Lesson in Circularity

Posted by on Jan 3, 2013 in Blog | 0 comments

One of the more common office actions issued by the USPTO against a trademark application is the dreaded “merely ornamental”.  These come in two flavors, “capable” and “not capable” (of acquiring distinctiveness, that is).  Interestingly, the word “ornamental” appears nowhere in the Lanham Act.  At its core, a refusal based on “mere ornamentation” is really a refusal based on the...

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How To Register Trade Dress

Posted by on Dec 31, 2012 in Blog | 0 comments

When most people think of trademarks, words or logos come to mind. However, trademark subject matter is a much more expansive concept. Many other types of “things” (often simply called “devices” for lack of a better term) are trademarks, many of them registered with the USPTO. Some of these other things/devices are sounds, motion marks, and single colors (e.g. brown is a trademark of UPS).  These are all discreet branding devices, easily...

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I Like It and I Want It

Posted by on Dec 21, 2012 in Blog | 0 comments

www.wanttt.com:     facebook: Plaintiff uses and owns WANT as a trademark in connection with services that allow Internet users to express their purchase intent for products and services offered on the sites of Plaintiff’s customers and on Plaintiff’s site. Plaintiff’s WANT services are activated when Internet users click on Plaintiff’s WANT Button near a desired product and/or service. Plaintiff is a social media company that...

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Will The Real Gummi Bear Please Stand Up?

Posted by on Dec 21, 2012 in Blog | 0 comments

                          A German court recently ruled in favor of Haribo, the original Gummi Bear maker, and against Lindt, the famous chocolate company in a trademark infringement case brought by Haribo.  The Court said that consumers would be “confused” by the similar looking bears.  You say you don’t agree?  Welcome to the strange world of European trademark...

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How To Register Descriptive Words

Posted by on Dec 11, 2012 in Blog | 0 comments

The term “descriptive trademark” is an oxymoron.  A descriptive word is ineligible for trademark registration unless it has secondary meaning (also called acquired distinctiveness).  So, words that are merely descriptive can not be trademarks. Nonetheless there are options available to those who wish to preserve a possible future right in a descriptive term. The first option is to register the term on the Supplemental Register....

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TOTT’S v JOTS – Make a “Small Note” of This

Posted by on Nov 5, 2012 in Blog | 0 comments

Occasionally I come across a case (often from the Trademark Trial & Appeal Board) that surprises me, OK, scares me.  This is because in order to do a good job at clearing trademarks (i.e. trademark searches), a trademark attorney must utilize his or her knowledge of an immense and ever-increasing body of case law dealing with likelihood of confusion combined with a touch of good instincts and “feel”, developed over many years of...

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Ping Pong or Putt-Putt Anyone?

Posted by on Oct 20, 2012 in Blog | 0 comments

While there are many words that most people would be very surprised to learn are trademarks, perhaps two of the most surprising are PING PONG and PUTT-PUTT.  I’ve known about Ping Pong for a while but I will admit, I had no idea that Putt-Putt is a trademark until a came across a recent complaint filed in the U.S. District Court of Maryland.   http://www.docstoc.com/docs/document-preview.aspx?doc_id=133046081   It will be...

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Registration of Descriptive Trademarks – Part II

Posted by on Sep 20, 2012 in Blog | 0 comments

A very recent decision from the CAFC adds an interesting twist to the issue of when a composite trademark (one that includes both a word and a design element) will be considered merely descriptive.  In the previous posting on this blog, I discussed the issue of registering composite marks that contain descriptive and generic words.  I gave examples of marks that were held to be inherently distinctive even though they contained descriptive words...

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Registration Options for Descriptive Trademarks

Posted by on Sep 8, 2012 in Blog | 0 comments

The term “descriptive trademark” is an oxymoron.  A descriptive word is ineligible for trademark registration unless it has secondary meaning (also called acquired distinctiveness).  So, words that are merely descriptive can not be trademarks. Nonetheless there are options available to those who wish to preserve a possible future right in a descriptive term. The first option is to register the term on the Supplemental Register....

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Trademark Searches – Is There Room in That Space? I Wonder

Posted by on Aug 24, 2012 in Blog | 0 comments

Sometimes when looking at the results of a trademark search, it helps to think about “spaces” between existing trademarks to rationalize what might otherwise be seen as a confusing picture to have to explain to a client.  Let’s suppose you had to search the term “I WONDER” for children’s books.  The search reveals the marks “WE WONDER” and “I WONDER WHY”.  So, you may wonder, if these...

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Trade Dress Jousting

Posted by on Aug 24, 2012 in Blog | 0 comments

There has been much discussion about “trademark bullying”. In a study of trademark litigation tactics released last year, the U.S. Patent and Trademark Office acknowledged that the cost of legal counsel “has the greatest impact on small businesses” to fight trademark challenges. But the study also concluded that “there are sufficient mechanisms in place to deter or punish those who resort to abusive …...

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South Butt Faces Contempt

Posted by on Aug 10, 2012 in Blog | 0 comments

This tale begins when The North Face sued The South Butt LLC for trademark infringement.  But that is not the end of it.                          According to SB, this was nothing more than a protected parody under the law, with NF as the butt of its joke.  Before the court could get to the merits however the parties settled by agreeing to a consent injunction, the terms of which were...

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“Look For” Ads Still Big with USPTO Examiners

Posted by on Aug 3, 2012 in Blog | 0 comments

When trying to prove secondary meaning in a design mark or trade dress, it is a very old established legal principle that advertising that instructs the consumer to “look for” the trademark at issue is the best evidence that consumers do in fact recognize that mark as a trademark (and thus it has secondary meaning).  That makes a lot of sense.  After all, what better way to prove that consumers understand the trademark significance...

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Tweet This! Trademark Rules of Usage

Posted by on Jul 30, 2012 in Blog | 0 comments

It used to be Rule #1 on the “how to use a trademark” list that for many years was distributed by corporate legal teams as standard reading for marketing people and others who often used trademarks in their jobs.  After all, a trademark is an adjective that modifies a noun (forgetting for the moment about logos, which simply stand alone).  Diamond salt, Firestone tires, Hershey’s chocolate, Band-Aid “brand” (that...

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Specimen Strategies for Registering Catch-Phrases

Posted by on Jul 28, 2012 in Blog | 0 comments

When Donald Trump says “You’re Fired” in an episode of The Apprentice, is that a trademark?  Putting aside the legal question, a more practical question is “would the USPTO accept an audio-visual specimen of the boardroom scene as a specimen demonstrating trademark use?”.  Probably not.  It’s just part of the show.  How would someone viewing a simple clip of a show (perhaps visiting from some other planet and...

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facebook Wants to Save FACE

Posted by on Jul 28, 2012 in Blog | 0 comments

On December 1, 2005, facebook filed an intent to use trademark application for the mark FACE in Class 38.  As of today, they still have not made any use of this trademark but it is still pending thanks to the USPTO rules allowing for up to three years from a Notice of Allowance to put a trademark to use in commerce. facebook gained itself additional time by virtue of delays resulting from a conflict with an earlier application for the trademark...

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Bland Whiskey Letter Creates Strange Buzz

Posted by on Jul 25, 2012 in Blog | 0 comments

What has happened to this world?  Are we THIS starved for “viral stories” that a mundane cease and desist letter from a Jack Daniels lawyer in Louisville KY, thinking she was just doing her job, can become what The Atlantic called “the most polite, encouraging, and empathetic cease-and-desist letter ever to be sent in the history of lawyers and humanity.”  Say whaaaat??   Here is the letter from the story in The...

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Facebook Like, Really Likes Like

Posted by on Jul 14, 2012 in Blog | 0 comments

On April 21, 2010 (my birthday, by the way) facebook filed 14 trademark applications for “LIKE” (7 for the word alone, 7 for the word with the little thumbs-up icon), in Class 9 and 6 different services classes.  I think it will be very interesting to follow these.  Although these marks are clearly in use today and have been presumably for some time, all of the applications were filed on an Intent-to-Use basis.  This is not...

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Mountain Goo

Posted by on Jul 14, 2012 in Blog | 0 comments

Despite what a rational person might say about whether consumer would actually be confused by the existence of both SOOGLE and GOOGLE for travel related services, a recent TTAB case had no trouble finding such confusion to be likely.  This is illustrated time and time again in cases involving well known trademarks.  Another recent case along these lines is Pepsico Inc. v Jay Pirincci Opp. No. 9118723 (June 25, 2012), where the Board held...

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What is Secondary Meaning – Second Part..I Mean, Part Two

Posted by on Jul 14, 2012 in Blog | 0 comments

Perhaps the best example of them all:               However, this one has a very interesting story.  ”BEST BUY” is inherently perhaps as descriptive a term in connection with retail services as one can imagine.  However, as you can see from the placement of the ® in the logo above, it is now a registered trademark, meaning (roughly speaking, since anything stated about trademark law must be done so...

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What is Secondary Meaning?

Posted by on Jul 14, 2012 in Blog | 0 comments

Secondary Meaning is perhaps one of the top three concepts in trademark law (I’d suggest that likelihood of confusion and Inherent Distinctiveness are the other two). This is best explained by solely using an example (I love it when I can take this shortcut…like when a picture is worth a thousand words).  OK here goes.  Let’s go back in time when air travel was very new and there were, oh let’s say, two airlines...

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The Duty to Protect One’s Mark Against Keyword Purchases

Posted by on Jul 14, 2012 in Blog | 0 comments

STK LLC v. Backrack, Inc., Cancellation No. 92049332 (May 21, 2012) [not precedential] STK sought to cancel Backrack’s trademark registration on the grounds that Backrack for “pick-up truck racks” is generic.  To support its claims, STK argued that Backrack had not adequately policed against third parties purchasing “backrack” as a trigger for keyword advertising on search engines. The TTAB rejected this argument...

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When The Law Affects That Which The Law is Trying to Measure – The Problem With Analyzing Confusion in Trademark Law

Posted by on Jul 14, 2012 in Blog | 0 comments

In Physics, it’s called the Heisenberg Uncertainty Principle.  One can never measure anything about a particle because the very act of observing it changes it.  There is a similar principle in trademark law, which is the subject of this blog post.  For lack of any other term, I shall call it the Bolmarcich Uncertainty Principle.  Before we get to that – some background is in order. Trademark infringement comes down to one simple...

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The Innocent Prior Use as a Defense to Trademark Infringement – Ignorance is Bliss

Posted by on Jul 14, 2012 in Blog | 0 comments

Without any fanfare, a couple of cases have now, shockingly without any criticism, commentary or even the slightest bit of discussion that this blogger has been unable to find, thrown out a very basic principle of trademark law that applies to defendants in a trademark infringement action who have adopted their trademarks without knowledge of the prior user.   Putting aside these two cases for the moment, the “rule” has always been...

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Reverse Trademark Bullies

Posted by on Jul 14, 2012 in Blog | 0 comments

There has been much discussion about “trademark bullying”, the notion that some brand owners are overly aggressive in pursuing what they perceive to be infringements of their trademarks           ( http://www.trademarkandcopyrightlawblog.com/uploads/file/TrademarkLitigationStudy[1](1)(1).pdf ) One can just as easily make the case for the existence of “reverse trademark bullying”, that is the...

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YUUUP! D’OH!

Posted by on Jul 14, 2012 in Blog | 0 comments

I’m addicted to the TV program Storage Wars on A&E.  One of the “characters” is Dave Hester.  As a “reality” show, the show features “real” people, and Dave ironically happens to be the least appealing/charismatic of them all. Nonetheless he has a trademark for his catch phrase “YUUUP!” (which he vocalizes during the auctions to indicate his willingness to bid at a particular price)....

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Starbucks Coffee Charred – Hyundai’s Louis Vuitton Basketball Out of Bounds

Posted by on Jul 14, 2012 in Blog | 0 comments

Trademark Dilution.  17 years since the first U.S. law and still nobody understands it nor knows the reason for its existence.  Very, very few courts have ruled in favor of plaintiffs on dilution grounds without also ruling in favor on trademark infringement grounds.  Dilution has often just been a tag on and nothing more.  I can’t possibly review the history of dilution law in the U.S. and the debate over it…suffice it to say,...

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North Face Whacks The Mole

Posted by on Jul 14, 2012 in Blog | 0 comments

One of the biggest problems faced by successful fashion brand owners is the rampant online sale of counterfeit goods on the Internet.  The problem is exacerbated when the operator of the website and the ISP are located in China, which is most often the case.  Until recently, the courts offered little help because even if you could get a judgment, there would be no way to enforce the judgment and get any type of reasonable relief.  Sure, the web...

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Dilution Concentrated

Posted by on Jul 14, 2012 in Blog | 0 comments

One of the few cases to hold dilution without infringement.  This is what the whole purpose of dilution was supposed to be but it has not worked out that way in the courts ever since it became law.  At least this decision brings dilution back to its roots although I have a lot of problems with it (to be discussed asap).   http://www.scribd.com/doc/88313477/Lv-Hyundai-Basketball             by Trademark...

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Move Over Victoria’s Secret and Juicy Couture – There’s a New PINK in Town and His Name is Bubba

Posted by on Jul 14, 2012 in Blog | 0 comments

This got me to wondering whether a professional golfer can own a trademark for the color pink.  I happen to believe so.  I’m happy to present my legal arguments for you Bubba…call me!                 http://www.sbnation.com/golf/2012/4/9/2935141/bubba-watson-2012-masters-champion-pink-driver-charity                   Bubba’s custom Mercedes...

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Trademark Encounters of the Third Kind

Posted by on Jul 14, 2012 in Blog | 0 comments

I’m talking about the ones that can’t be spoken or photocopied.  The ones that have broken out into a new dimension….the third.  Yes, three-dimensional trademarks (sometimes called trade dress, although trade dress can also be of the ‘second’ kind).  Typically reserved for the domain of patents, the appearance of a product or a particular feature of a product can in some cases be registered and or enforced as a...

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The 12th Man and The Best NFL Uniform Hands Down

Posted by on Jul 14, 2012 in Blog | 0 comments

I’m hung up of late on sports trademarks. For some reason, they are following me everywhere I read.  I am not about to go through the history of “The 12th Man” trademark battles fought by Texas A&M which has owned this trademark since 1902. They are doing all that a good trademark owner must do to keep its trademark…enforce, enforce, and then enforce some more.  I didn’t say that just because I’m a...

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Philly Follow Up

Posted by on Jul 14, 2012 in Blog | 0 comments

I should give myself leeway as a Blogger but ever the perfectionist, I can’t.  I used various marks and names loosely in my last post.  Philly’s Famous Water Ice, Inc. is the company I mentioned I am a HUGE fan of (in Jersey, “water ice” is everywhere! especially Rita’s).  They are not named Philly Ice, nor apparently is Philly Ice a registered trademark of theirs per se.  I do not believe it is generic however, so...

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Cold War Brewing?

Posted by on Jul 14, 2012 in Blog | 0 comments

The supermarket is my laboratory.  I happened to be in my local lab today.  It’s starting to feel summery and that can mean only one thing….PHILLY ICE!!!!!!   For those of you who may not have had the pleasure, indulge yourselves sometime on a hot summer day. Pure heaven (and those flavors!).  Oh yeah, trade dress.  This post is about “Trade Dress”.  As I grabbed for my Philly Ice I felt something was not quite right....

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Linsanity, Timsanity, and Other Sports Related Slimsanity

Posted by on Jul 14, 2012 in Blog | 0 comments

It started with THREE-PEAT (not to mention FOUR-PEAT, FIVE-PEAT and JOY OF SIX).  It never really stopped, but recently thanks to the temporary phenomenon that was one Jeremy Lin of the New York Knicks (now sadly done for the season with a knee injury), the “phenomenon” of seeking trademarks for sports related “catch-phrases”(which I will describe as newly coined terms that get their start in the world of sports,...

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Let’s Talk Infringement – Part I

Posted by on Jul 14, 2012 in Blog | 0 comments

A perfect place to start my series on trademark infringement.  MARCH MADNESS!! Like SUPER BOWL, it is a very well known event in the sports world.  They both also happen to be trademarks. SUPER BOWL can and has been the subject of hundreds or maybe thousands of blogs because of the fact that the NFL claims a SUPER monopoly on these words, far beyond what trademark law provides.  In fact they’re apparently now not even happy with what used...

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Shark Tank Part II

Posted by on Jul 14, 2012 in Blog | 0 comments

I’m going to be brief.  Here were some of the brands for products being peddled: The Ave:  a store where one can go to have sneakers made with their own custom graphics (pictures, etc.).  The selling point was fast delivery of a custom designed sneaker while you wait.  I immediately thought “express” and then The Expressway, The Runway, The Sneaky Personality…stop me please.  BUT this points out a problem with any...

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Color Me Telecom

Posted by on Jul 14, 2012 in Blog | 0 comments

If you’re going to compete in the telecom biz you’d better grab a color quickly!  Most are legal taken thanks to trademark law and what seems to quickly becoming the main brand signal used and recognized as such by consumers in this arena.  It’s easy to process and clear as signals go. www.sprint.com (yellow) www.t-mobile.com (magenta) www.verizon.com (red) www.att.com (orange and blue) I’m pretty sure this isn’t a...

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Logo Design

Posted by on Jul 14, 2012 in Blog | 0 comments

Brand owners often try to put something in their logos that says something about who they are ( a logo can typically fit no more than a tidbit or two…BUT see this one!!!)                 THEY GOT 26 separate businesses in this one logo!!!  Remarkable. Before I get to what I promised I will now have you take a look at another logo and see if you know whom it is (just like the logo, think boring,...

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Shark Tank! Shark Tank!

Posted by on Jul 14, 2012 in Blog | 0 comments

It’s Friday!!!!  You know what that means, don’t you?  The best hour of TV entertainment ever conceived.  It’s to IP attorneys what the Real Housewives of Nome, Alaska is to lonely housewives all over America (I think that’s one from the series, isn’t it?…those are some cold ladies!!!..and those furs…nothing like flaunting your money).  But I diverge.  I LOVE LOVE Shark Tank.  I love the part when one...

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My Opinion on Brand Consultancies

Posted by on Jul 14, 2012 in Blog | 0 comments

Not Worth it for Many.  Google “brand consultants”.  Once your computer stops smoking you’ll see hundreds upon hundreds of companies that go by such monikers and promise you a complete revelation as to what you sell or who you are. My first suggestion might be a psychologist but if it’s your branding you care about, who better than you to do it?  I’ve worked with several of these companies and I know how they work....

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New and Improved Brands

Posted by on Jul 14, 2012 in Blog | 0 comments

Not what you think.  Yesterday, The Wall Street Journal had an interesting article about P&G’s licensing division which (to their surprise according to the article..what?) generated over $3B in sales of goods at retail.  These are products for which P&G gave other companies a right to use one or or more of P&G’s bands for products that would not otherwise be made by P&G (yes, the law allows this as long as the...

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Why Register Your Trademarks?

Posted by on Jul 14, 2012 in Blog | 0 comments

Although there is some protection given to unregistered trademarks, it is always advisable to register your trademarks if they are at all valuable to you.  It can be very difficult to enforce your unregistered trademarks in court.  First and foremost, you enter court with no presumption that you even own a trademark, so you must prove that you do.  A registration affords you with a presumption of validity for your trademark that saves you a lot...

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Think Beyond Words and Logos When Registering Your Trademarks

Posted by on Jul 14, 2012 in Blog | 0 comments

The focus of my practice is “trade identity law”. This typically encompasses trademarks but goes further by addressing legal protection for all aspects of the unique visual presentation of products and services in the marketplace.  This includes brands and other trademarks, logos and combinations thereof, but it also can potentially include what is often referred to loosely as “trade dress”, which goes beyond words and...

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