Inherently Distinctive

News & Analysis as of

What Does It Take to Trademark Your Name? - Tartell, M.D. v. South Florida Sinus and Allergy Center, Inc., et al.

Addressing the question of when a professional name can be protected as a trademark, the U.S. Court of Appeals for the Eleventh Circuit found that the plaintiff doctor’s name had not acquired that distinction. Tartell, M.D....more

European Community Trademark registration for patterns and three-dimensional marks requires Acquired Distinctiveness in Each...

Owners of pattern and three-dimensional marks should take note of the substantial burden of proving acquired distinctiveness of their marks through use throughout the European Union. On April 21, 2015, Louis Vuitton’s...more

Louisiana Fish Fry Ltd. Couldn’t Jump Out of Frying Pan

As I was looking at a photo of the fish my nephew caught this weekend, I wondered if my brother and my sister-in-law would be inviting me to a fish fry. Indeed, a fish fry was on my mind after having just read the...more

Protection of Identities Not Identical Under Lanham Act §§ 43(a) and 2(a)

In Tartell v. South Florida Sinus and Allergy Center, Inc., the Eleventh Circuit reversed the district court’s finding that the plaintiff’s personal name had acquired distinctiveness as a trademark and that the defendant...more

Purple-Colored Fabric Tags Attached to Remote Control Found Inherently Distinctive

News flash, last Friday the USPTO approved for publication a non-traditional trademark that I’ve seen in real life before. Let’s just say it is attached to one of our many remote control devices that I’ve had to dig out from...more

Australia: High Court Decision - Registrability of foreign language trade marks

Today [3 December 2014] the High Court handed down a decision in Cantarella Bros Pty Limited v Modena Trading Pty Limited, clarifying the test for inherent distinctiveness of trade marks, and giving clarity to the treatment...more

Inherency Is Tough to Prove—Even in IPR

ZTE Corp. v. ContentGuard Holdings, Inc. - In four final written decisions in inter partes review (IPR) challenges, the Patent Trial and Appeal Board (PTAB) concluded that the petitioner had not demonstrated by a...more

Crisps = Chips = Crackers?

Seeing these on the store shelf this weekend reminded me that we are still anxiously awaiting the USPTO’s decision from the Trademark Trial and Appeal Board (TTAB) as to whether the words “pretzel crisps” will be found...more

Inherency Argument Comes Up Short in Inter Partes Review Petition

Despite having multiple grounds denied, Becton, Dickinson and Company was able to get 8 challenged claims of a One Stockduq Holdings patent into a trial for inter partes review, in a case styled as Becton, Dickinson and Co....more

Choosing A Strong Trademark

You’ve got a great business idea, you’ve done your research and due diligence and can’t wait to enter the great American business ring. But what do you call this new company or product or service? This query is often the...more

A New Test for Trademark Suggestiveness

Let’s call it the Family Feud test of trademark suggestiveness . . . We’ve written a lot here about the all-important Spectrum of Distinctiveness, a key tool for those who name products and services, and for those who...more

Trademark Advice: Measure Twice, Cut Once — How to Avoid Unnecessary Legal Fees

Originally published in Utah Business. Very seldom do companies intentionally adopt trademarks that are likely to cause confusion in the marketplace or intend to profit on the goodwill of other companies. Yet, even...more

The Not-So-Happy Place of Genericness

Restaurant trade dress is possible to own when the claimed trade dress is distinctive and non-functional, think Taco Cabana. Restaurant trade dress can be so unique in the marketplace that distinctiveness is presumed with a...more

Funeral Homes In Charlotte Battle Over Trademark Infringement

You don't see a trademark infringement action in the Business Court every day, let alone a TRO decision, but a case with both came along last Friday in SCI Carolina Funeral Services, LLC v. McEwen Ellington Funeral Services,...more

Inherently Distinctive Product Packaging?

Earlier this month, we asked whether [yo]gurt(lab) has an inherently distinctive interior restaurant environment? This week, we’re focused on product packaging, and ask whether Spine Vodka has enough meat on the bones...more

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