Steve Baird

Steve Baird

Winthrop & Weinstine, P.A.

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Latest Publications


Trademark Fair Use, Where Are You TYLT?

A little nominative trademark fair use might have saved these little gems from going right back to Costco, as gently used merchandise, with opened and not so gently mangled packaging to boot...more

2/29/2016 - Fair Use iPhone Trademarks

Energizer Bunny to Drain Duracell’s Battery?

When I first heard last week about a trademark infringement lawsuit between Energizer and Duracell over pink bunny icons, my first thought was, Duracell is The Copper Top battery brand, what would motivate Duracell and how...more

2/23/2016 - Breach of Contract Parody Trademark Infringement Trademarks

The Strategic Use of TTAB Proceedings to Advance Trademark Registration Efforts

Yesterday we wrote about how petitions for partial cancellation under Section 18 of the Lanham Act can be creative and powerful tools when an applicant is confronted with likelihood of confusion registration refusals under...more

2/16/2016 - Corporate Counsel Lanham Act Likelihood of Confusion Trademark Application Trademark Trial and Appeal Board Trademarks Young Lawyers

Thinking Outside Section 2(d) Refusals

Section 2(d) of the Trademark Act is the statutory basis for refusing registration based on likelihood of confusion with another mark. It is invoked on an ex parte basis by USPTO Examining Attorneys, and it is also raised in...more

2/15/2016 - Likelihood of Confusion Trademark Act Trademark Registration Trademark Trial and Appeal Board

Super Bowl Ads, and More Super Bowl Ads?

What is a Super Bowl ad? Typically a Super Bowl ad refers to the ad of a brand that has paid lots of money to air its ad on network television during the Super Bowl, a/k/a The Big Game....more

2/8/2016 - Advertising NFL Super Bowl Television Commercials

Negative Look-For Advertising Statements

Loyal readers know how important look-for advertising can be in making the difference between establishing trademark ownership in the shape or configuration of a product, and being left with nothing but a goose egg (as...more

2/2/2016 - Advertising Brand Trademarks

iPhone 6, Can You Say Nominative Fair Use?

We cover a lot of topics related to nominative fair use of trademarks. Does the example below on product packaging from J. Crew qualify for fair use of the iPhone 6 mark?...more

1/26/2016 - Fair Use iPhone J Crew Trademarks

Self-Inflicted Cuts That Can Kill a Trademark?

We have some razor sharp readers and guest bloggers. We’re deeply thankful and especially grateful when our readers and guest bloggers send us real life illustrations of marketing pitfalls we’ve identified, sliced and diced...more

1/25/2016 - Functionality Marketing Trademark Registration

How Many Ways Can a Trademark Be, Cool?

To the extent you’re also all about brands and trademarks, and you imagine a trademark story with each brand you might encounter, I suppose there are an infinite number of ways, right?...more

1/18/2016 - Brand Trademarks USPTO

Watch the Informational Refusals, Please!

Let’s suppose you conduct sightseeing tours using a tram car, maybe on the boardwalk in New Jersey. Maybe even a famous tram car service you’ve operated since 1949?...more

1/11/2016 - Service Marks Sound Marks Trademarks USPTO

2016, A Big Year For Relationship Building

Project work is fine, whether it’s responding to an overreaching trademark cease and desist letter, helping out with a re-branding project, drafting changes to a license agreement, reclaiming a domain name, assisting with...more

1/4/2016 - Business Development

Naming Products and Services With Brands?

Word to the wise, not the best idea to name a product or service by using another’s brand. So, when Duke’s Seafood & Rib Shack restaurant wants to create a name for their bar, permission would be required to use the...more

1/4/2016 - Brand Restaurant Industry Trademarks

Will USPTO Director Michelle Lee’s Signature Adorn a SLANTS Certificate of Registration?

Let’s hope not, for a variety of reasons. In other words, let’s hope the Supreme Court straightens out the unfortunate ruling last week that the federal government is powerless to deny requests to federally register...more

12/28/2015 - CAFC Disparagement First Amendment Lanham Act Stare Decisis Trademarks

Jelly Belly Seeks Registration of Candy Shape

Last week Jelly Belly Candy Company filed a non-traditional trademark application with the USPTO to federally register the shape of its Jelly Belly candies. The claimed mark is drawn like this...more

12/22/2015 - Jelly Belly Trademark Application USPTO

Another Cliche Color Trademark Calamity?

Techdirt is crying foul (again) and this time, wrapping the “trademark bully” mantle around the magenta-colored neck of the T-Mobile brand for enforcing its color trademark against OXY....more

12/21/2015 - Color Marks Likelihood of Confusion T-Mobile Trademark Bullying Trademarks

PATRÓN Tequila Bottle Design Enforcement?

When we write about non-traditional trademark enforcement here on DuetsBlog, we almost always are referring to the protection of non-traditional marks like product configurations, product containers, product packaging, color...more

12/14/2015 - Enforcement Actions Popular Product Packaging Trademark Infringement Trademarks Wine & Alcohol

On Mastering U.S. Trademark Registration

For those interested in learning more about the valuable benefits of federal trademark registration and how to successfully navigate the registration process at the USPTO, it’s time to mark your calendars for an upcoming...more

12/8/2015 - Continuing Legal Education Trademark Registration Trademark Trial and Appeal Board USPTO

On Valuing Cherubs, Cuties, and Halos

Picking up where we left off yesterday discussing brand valuation, I’ve recently taken great interest in the branding of fresh fruits and vegetables — they seem to be the ultimate commodity, a perfectly ripe environment for...more

12/1/2015 - Asset Valuations Brand Commodities

Who Decides What Your Brand’s Worth?

On this Cyber Monday, I’m left wondering, will we ever have a day when the metrics and automated tools available are so accurate and reliable that intangible assets like brands (and trademarks) regularly will be valued,...more

11/30/2015 - Asset Valuations Brand Trademarks

Is Ronald McDonald Lovin’ This Fryday?

When I recently snapped the above image of a t-shirt on display at a large retailer in the Twin Cities, it made me want to ask the same question many survey experts will ask of respondents to determine whether a likelihood of...more

11/16/2015 - Color Marks Likelihood of Confusion McDonalds Trademarks

What’s in Your Tagline, a Strong Trademark?

Last year, in my post entitled What’s in Your Wallet, a Cafe?, I had this to say about the iconic Capital One tagline: “Since 2000, Capital One Financial — the nation’s largest direct bank — has been promoting its credit card...more

11/9/2015 - Capital One Intent-to-Use Tagline Trademarks

Will Purple Reign, as a Color Trademark?

Today, we’re not talking about that Purple Rain, that Color Purple, or those Purple People Eaters, and we’re especially not talking today about Purple Gloves, Purple Bags, Purple Jackets, Purple Candy Wrappers, or Purple...more

11/2/2015 - AstraZeneca Color Marks Generic Drugs Nexium Pharmaceutical Industry Trademark Registration Trademarks

Airline Brand Strategery: It’s Transfarency

Earlier this month Southwest Airlines launched a brand new ad campaign called “Transfarency,” which is said to highlight the airline’s “low-fare credo and its lack of bag fees, change fees or hidden fees for passengers.”...more

10/19/2015 - Brand Inherently Distinctive Lanham Act Southwest Airlines Trademark Registration Transparency USPTO

Ads Touting Function Shoot Down Trademark

This isn’t the first time we’ve written about brand owners who shoot themselves in the foot with their advertising. And, I’m sure it won’t be the last. As we’ve discussed before, touting the function of a product design...more

10/12/2015 - Advertising Brand Functionality Patents Trademark Trial and Appeal Board Trademarks Utility Patents

On Slanted Arguments and Red Herrings

Last Friday, both slanted arguments and red herrings were present during the 90 minute en banc oral argument before the Court of Appeals for the Federal Circuit (CAFC) in In re Tam....more

10/6/2015 - CAFC Copyright Disparagement En Banc Review First Amendment Government Speech Doctrine Lanham Act Preemption Trademark Registration Trademark Trial and Appeal Board USPTO

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