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  • Brand Verbing Rolling Out of Control?

    Since the origin of trademark use guidelines, there has been immutable, black and white legal direction against using brand names (and the trademarks that protect them), as nouns or verbs. If you’ve seen more flexible rules, please share. Yet, marketers have recognized the power verbs have over nouns and adjectives. Highlighting the legal need for flexibility and creativity in support of...

  • Is it Curtains for Corona?

    “It’s curtains” clearly means “the end” or “an adverse ending to something.” So, the more ambiguous portion of my opening question is, which Corona? The present news cycle would have us believe there are two: a virus and a beer. Both the beer and virus names come from the Latin translation to “crown.” Last week...

  • Backpacks, Boycotts, Brand Bullying, Backlash, and Backcountry.com

    A belated thanks to Candice Kim and Professor Leah Chan Grinvald for sharing their insights and perspectives in our recent webinar on trademark bullying. One topic we discussed is Backcountry.com’s recent back-down to backlash over its trademark enforcement activities concerning the Backcountry mark. The example is a harsh reminder to trademark counsel of the worst...

  • Rorschach ≠ Likelihood of Confusion

    One of the problems with “trademark bullying” can be a failure to comprehend the legal standard governing most trademark disputes: Likelihood of confusion. Another is a failure to appreciate the subjective nature of whether the legal line has been crossed or whether there has been an attempted trademark overreach. Understanding that trademark rights are dynamic (not static, meaning they can grow...

  • Rent Me: A Non-Trademark Command

    Some commands support trademark ownership (Just Do It), and others don’t. As you know, I’m not a fan of the USPTO’s trend toward informational refusals, especially when the “evidence” more supports a mere descriptiveness refusal. Having said that, this RENT ME informational command screams incapable: Rent Me caught my eye, because bigger words don’t always make it a trademark:...

  • Thin to Lose?

    One of my friends, when playing blackjack and asked to “cut the deck” after it has been shuffled, consistently admonishes without hesitation: “Thin to win.” Given the trademark story for today, you may end up believing the opposite. A 6-year trademark fight between Frito-Lay and Real Foods ended this month. Frito-Lay opposed Real Foods’ applications...

  • Why Not Put a Bow on Genericness?

    ‘Tis the season for gratitude and thankfulness, and avoiding conflict and fruitcake. From a trademark perspective, every season is for avoiding genericness, right? After all, generic designations are part of the public domain, they aren’t own-able. So, why is Guaranteed Rate continuing to invest in Rate.com, found to be generic? Perhaps because, for an online...

  • Will Religious Matter Be The Next Constitutional Challenge to Trademark Registration Denials by the USPTO?

    When thinking about brands comprising religious matter, I think of EZEKIEL 4:9. The EZEKIEL 4:9 brand has been registered as a trademark for bread since 1990. The brand owner had to clear some chaff from the Principal Register to do so, threshing this EZEKIEL as abandoned, and gaining this EZEKIEL by assignment. It presently owns...

  • Put a Sock in Informational Refusals?

    Now that we’re back in the blogging business, I’m anxious to be able to harvest some visual trademark stories captured on my iPhone over the past 7 months: Are you surprised to see the federal registration symbol marking World’s Softest? After all, the phrase seems to communicate important information about the socks in question, as...

  • Striving for Continuous Thanksgiving

    It’s been a while . . . about seven months now. As you’ll see, a few things have happened since April, when we last left you with these gems on the topic of trademark bullying: Stop Bullying the Entrepreneurs, What does Entrepreneur Mean, Anyway?, and Public Shaming is Not the Solution to Trademark Bullying. Let’s Build One.  We’re thankful...

  • Public shaming is not a solution to trademark bullying. Let’s build one.

    –Jason Voiovich Last week, we saw the latest installment in the “trademark bullying” saga. But this time was different. Instead of lawyers fighting amongst themselves, DuetsBlog brought out the big gun: Seth Godin. You can read the entire piece here. I like Seth Godin, and so do lots of other people (hence, the “big gun”)....

  • What Does Entrepreneur Mean Anyway?

    Let’s be very clear, today is April Fools’ Day, but this is not an April Fools’ Joke. It’s not every day Seth Godin volunteers a guest post, but Thursday was that day. Friday we published Stop Bullying the Entrepreneurs, 33 comments and counting. This isn’t the first time Seth has spoken out against trademark bullying,...

  • Stop bullying the entrepreneurs

    – Seth Godin It’s not good marketing and I’m pretty sure it’s not good law, either. It seems as though Entrepreneur magazine (who should know better) is working with Latham and Watkins (who should certainly know better) to persist in their relentless efforts to bully entrepreneurs to stop using the word ‘entrepreneur’. And yes, it’s...

  • Cardi B, You (Probably) Can’t Trademark “Okurrr,” Okay?

    The saltiest trademark news in the last week surrounds singer Cardi B’s application to register the marks “Okurr” and “Okurrr,” both slang for “Okay???”–but pronounced in a hip, rolled-r trill, sometimes with a shady tone. Or, as Cardi describes, it: the sound of a “cold pigeon in New York City.” If you haven’t heard it...

  • More DuetsBlog Accolades, Thank You!

    It’s that time of year again, and we’re honored to share some wonderful news — hot off the press today — concerning the 2019 JD Supra Readers’ Choice Awards: For the third year in a row, we have been recognized as the Top law firm writing on Trademarks (incredibly, four of us made the Top Ten...

  • The Death of the Supplemental Register?

    Let’s all hope that the Supplemental Trademark Register is not on the death watch. It appears though to be on life support, at times, and especially with the USPTO’s heightened focus on “merely informational” matter, including laudatory messages. This is a common basis for registration refusal nowadays: “Merely informational matter fails to function as a mark...

  • Food Fight in NYC!

    Famous celebrity chef Chloe Coscarelli (“Chloe”) and Tom Colicchio (“Colicchio”) started a new pop-up restaurant called “Supernatural” that is in the midst of a “food fight” or lawsuit with owners of the By Chloe restaurant Chloe originally founded but no longer has an ownership interest in.  After receiving cease and desist letter from BCH Hospitality...

  • Penn State Hits a Speed Bump with Plans to Protect HAPPY VALLEY Trademark

    If you have heard of Penn State, you have probably heard the phrase “Happy Valley.” The school, the students, and the media regularly use “Happy Valley” in reference to the school and the surrounding community. The school considers the association so strong that Penn State recently applied to register HAPPY VALLEY as a trademark for...

  • Rivian’s F-150 Masquerade: Fair Use or Trade Dress Infringement?

    A little over one year ago, I blogged about Tesla’s Roadster being launched into outer space, asking who owns the right to the “Spaceman” rider’s mark? Today I post a different thought-provoking question about electric car company Rivian: Does Rivian’s use of a Ford F-150 body when testing its electric truck technology in public risk...

  • Opinions on Opinions on Opinions

    At DuetsBlog, we never shy away from sharing our opinion.  It’s part of what makes us not Dr. No.  For over ten years, this has included opinions about interesting trademarks, non-traditional trademarks, boring trademarks, and controversial trademarks, and those are just from me, as well as our opinions on the opinions of others (Ron Coleman, especially),...

  • DuetsBlog: Avoid Sitting on the IP Fence

    Well, here we are — a mere ten years ago today — when we dove head first, or at least, dipped our collective toes into the vast intellectual property blogging pond. Intellectual Property — IP — is italicized today, because there is currently a belief among some of those we respect, that trademarks aren’t intellectual...

  • Registration of Copyright Needed to Sue

    Many years ago, as a young lawyer, I experienced the utter joy of helping a client dismiss a copyright infringement lawsuit against it, because the plaintiff’s claimed copyright hadn’t yet been registered with the Library of Congress. Seemed like an obvious error for the plaintiff to file when it did, since the federal copyright statute,...

  • This Is How You Do It

    – Mark Prus, Principal, NameFlash It’s that time of year! Baseball Spring Training is here! In honor of this, I’m looking at the fun names in Minor League Baseball. Some of them demonstrate the key principles of name development! Minor League Baseball team names can be dull and boring. For example, there are some that just reflect...

  • Q and A: Q, Another Single Letter Brand?

    Welcome to another edition of Single Letter Brands. This one was uncovered in the far southwest corner of the country, if you haven’t been, I highly recommend a visit: Q is a casino/resort near Yuma, Arizona. Here’s a question, what does Q stand for? In this context, near Yuma, we’re not talking this Q casino,...

  • Will Daenerys or Sansa Sit on The Iron Throne?

    Does Sanas Health Practice Ltd. (“Sanas Health”) think that Daenerys or Sansa will win at the end of the wildly popular Game Of Thrones series and ultimately sit on the Iron Throne?  Sanas Health filed two applications for the mark “QUEEN OF THRONES” with the United States Patent and Trademark Office (“USPTO”). Interestingly, the Applicant’s...

  • Good, Enough? Really, as a Trademark?

    No worries, I’m back at the keyboard, refreshed after a busy January, from the ATA Show in Louisville to Las Vegas for the SHOT Show, then Austin, and well beyond. 2019 is off to a rapid start, not sure where the first half of February went, so I’ll make sure this is a good one, and with...

  • If an Alligator Infringes a Beaver Mark, Will a Cowboy?

    You might recall that several months ago, we blogged about an intriguing trademark infringement battle between Buc-ee’s and Choke Canyon. In June 2018, the Texan rivals competing in the over-sized gas station market–a real niche, to be sure–went to trial, with Buc-ee’s arguing that Choke Canyon’s alligator logo infringed Buc-ee’s beaver mark: Incredibly, the Texan...

  • Targets of Opportunity

    –James Mahoney, Razor’s Edge Communications Every now and then, lightning strikes where a creative team sees a terrific, fast-turn opportunity to have a little fun. I think of them as targets of opportunity. We had one some years ago when we were in the midst of creating a series of mailers for a search-technology client. Early...

  • It’s That Super Bowl Time of Year Again

    Over the last decade, we’ve covered Super Bowl topics, it’s that time of year again! We’ve probed the NFL’s overzealous activities and asked hard fair use questions. And, with Big Game LII in our backyard, we had a front row ambush marketing seat. With digital marketing, that front row seat can be anywhere your iPhone takes you: The...

  • Artists’ Lawsuits Against Fortnite Creators May Rely on Rights of Publicity

    — Jessica Gutierrez Alm, Attorney No one does the Carlton quite like Carlton Banks.  (Queue Tom Jones’s It’s Not Unusual.)  Since actor Alfonso Ribeiro first performed the unique dance on The Fresh Prince of Bel-Air, it has been readily associated with him.  When the dance move recently appeared as a purchasable avatar dance in the...

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