Red Solo Cup Inspiration?

by Winthrop & Weinstine, P.A.
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Marketing types, it may well be obvious to some, but it is always important to consider the source of inspiration for the branding and marketing of the products and services you promote.

At least for those who follow country singer Toby Keith, with a Costco retail end-cap display like this, it’s hard not to assume where the inspiration came from: Keith’s musical hit “Red Solo Cup.”

As Sterling Whitaker wrote this past summer for Taste of Country:

“Never underestimate the power of partying. Toby Keith’s party-hearty anthem ‘Red Solo Cup’ has been certified double platinum by the RIAA after selling two million digital downloads, which also makes it Keith’s career top seller. The news comes just six months after the song was certified as the first platinum single of his career in January.”

Even assuming the notoriety of Keith’s ”Red Solo Cup” musical performance and award-winning music video inspired the branding of the above display for big, red, Chinet brand disposable plastic cups, I’m not suggesting any inspiration has led to a viable trademark legal claim. But, I am suggesting that when inspiration for a product and the marketing of it derives from something other than purely public domain material, it’s time to invoke at least a little perspiration, pause and consult a competent trademark type.

As to the more straightforward trademark issues that don’t generate too much sweat, unlike the case with the color red when applied to the sole of high fashion women’s shoes, given how many different unrelated brands offer red-colored disposable plastic cups (Dixie, Solo, Chinet, Hefty, Party City, and Wal-Mart, among others), there should be little fear that any one of them ever could own exclusive rights in the single color for these goods. And, since there is no use of the Solo trademark or brand in the display, what is left for comparison are pretty much descriptive, if not generic terms: The Big Red Cup. That, however, didn’t stop Huhtamaki — the corporate owner of the CHINET brand — from attempting to own THE BIG RED CUP designation as a trademark.

To that point, it is a bit curious that Huhtamaki’s federal trademark application for THE BIG RED CUP did not receive a mere descriptiveness refusal under Section 2(e)(1) of the Lanham Act, since the cups appear both big and red. It did, interestingly however, receive a likelihood of confusion refusal with Wrigley’s BIG RED trademark registration (for mugs, not chewing gum, thankfully), and so THE BIG RED CUP trademark application currently stands abandoned, since Huhtamaki failed to respond to the registration refusal. But, now that the cited Wrigley’s registration has been cancelled for failure to show continued use of the BIG RED mark for mugs, it will be interesting to see whether Huhtamaki makes another attempt, and if so, whether this time it receives a mere descriptiveness refusal.

As to other possible issues, and putting aside what would likely be a weak likelihood of confusion claim (and I won’t even mention dilution), we know that there can be no trademark rights in “Red Solo Cup” without actual trademark use, as mere use of the phrase as the title of a song doesn’t qualify. And, since another’s brand name (Solo) is included within the phrase, this would appear to further complicate any claim by Keith to own trademark rights in the phrase “Red Solo Cup.” But what about a much less relied upon legal theory, one that provides rights without formal trademark use or rights: Right of publicity and the assertion of a false connection (as opposed to likelihood of confusion) bar to federal registration, under Section 2(a) of the Lanham Act?

There are more than a few interesting questions to ponder on that point. But limiting our focus to the most obvious one: Is ”Red Solo Cup” so intertwined with and part of Mr. Keith’s persona that he would have an enforceable right of publicity and standing to oppose registration under a false connection theory? (Never mind that Keith may not want to assert that the song title is part of his persona and right of publicity, as he has labeled the song (which he didn’t write) “nursery song stupid.”) There is certainly precedent available if Keith were so inclined to humble himself to this linkage. Trademark types will recall Jimmy Buffet’s success in an early non-trademark case where Buffet prevailed on a false connection claim to prevent the Chi Chi’s restaurant chain from registering MARGARITAVILLE (well before Buffet had developed extensive trademark rights and his present licensing empire in the song title).

So, you think the potential right of publicity/false connection issue surrounding “Red Solo Cup” is a fringe hypothetical that will never surface?

Then consider this example: RED SOLO CUP FOR PRESIDENT. Unless someone gets in the way (from inside or outside the USPTO), it appears that a photographer from Newport News, Virginia is positioned to have this mark published for opposition, as no Section 2(a) or 2(d) refusals were made by the USPTO.

So, I must ask, is “Red Solo Cup for President” another way of saying “Toby Keith for President”?

If so, Keith probably has standing to oppose even without actual trademark rights in the phrase. What do you think?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Winthrop & Weinstine, P.A. | Attorney Advertising

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