You’ve gotta be shipping me!!

by Winthrop & Weinstine, P.A.
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Kmart recently unveiled a brand new advertisement that’s about as subtle as a shovel to the face. While some have described it as juvenile or immature, I can’t help but chuckle everytime I see or hear it. Maybe that says something about me…

Anyway, here’s the ad. http://www.youtube.com/watch?v=I03UmJbK0lA&feature=player_embedded

The ad, which was initially released exclusively online, has apparently been a huge success for Kmart. (Qualifier: Success based on views, not success based on sales.) In fact, the ad has been so popular that Kmart will be running it on “select cable networks” shortly. (See here.) If the goal was buzz, then the commercial certainly accomplished its purpose.

My first reaction to the commercial, after my initial laughter, was a question about the availability of protection for a “Ship my” anything based trademark. I could see Kmart possibly considering a family of trademarks/slogans to be used in conjunction with or following the release of this ad. Would something as outwardly vulgar as a “ship my pants/drawers/bed” family of marks be registrable with the USPTO?’

The question requires an examination of the prohibition on “immoral, deceptive, or scandalous matter.” As I’ve previously noted, the line for this prohibition has always been a bit fuzzy. There are numerous examples of marks that were and were not acceptable, and a review of these marks makes it difficult to discern any meaningful measure of acceptability. The best that can be said is the more explicit the mark is, the less likely it will be registrable, and vice versa. For example, JACK-OFF for adult phone services was not okay, but BIG PECKER for T-Shirts with giant roosters was.

Here, I expect Kmart would likely be successful if it tried to register a family of marks based on its “shippy” joke. The closest analog I can think of is the SOFA KING line of marks that have been registered with the USPTO. (I previously blogged about these marks here.) I have not seen any “ship” based marks that would be similar to what Kmart has done here, but if the USPTO would let SOFA KING fly, I can’t imagine SHIP MY PANTS would create more of an issue.

Any thoughts?

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.

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