News & Analysis as of

Inherently Distinctive

Chartreuse Color Trademark Still on the Loose

Back in December we wrote about a trademark infringement case (Weems v. Plews) involving claimed exclusive rights in the color chartreuse as applied to various kinds of hoses....more

These Boots Are Made For Walkin’: Trade Dress and the Distinctive Look of a Boot Sole

by Knobbe Martens on

Airwair, the owner of the Dr. Martens brand, recently launched a series of lawsuits in the Northern District of California to enforce the trade dress of its “iconic boots and shoes.” One lawsuit was filed in October against...more

The Designer Formerly Known As…Intellectual Property Issues Arising From Personal Names As Fashion Brands

by Ladas & Parry LLP on

Kate Spade, Paul Frank, Joseph Abboud, Catherine Malandrino, and Karen Millen—aside from being well-known designers, all have something else in common; they no longer own the right to use their personal names as their brands....more

Diamonds In The Rough: TTAB Refuses Registration For Repeating Pattern

by Ladas & Parry LLP on

In a precedential decision in In re Fantasia Distribution Inc, Serial 86185623 (September 21 2016), the Trademark Trial and Appeal Board (TTAB) held that a repeating diamond design pattern appearing on an electronic hookah...more

Have Sense About Scents

In today's marketplace, companies are constantly seeking their moment, day, or --if they are lucky--year on the top of the "best of" list for new, unique, and/or fabulously redesigned goods or services. The sheer number of...more

The Distinctiveness Threshold for Stylization of Descriptive Marks

In a recent TTAB case, the Board considered whether a stylization of a descriptive term supports registration on the Principal Register. The short answer? It depends....more

Mark It to MarketTM - July 2016

The July 2016 issue of Sterne Kessler's Mark It to MarketTM newsletter discusses an upcoming SCOTUS design patent case, In One Nation Enterprises and stylization of a descriptive term, and currently open gTLD Sunrise...more

MACCOFFEE Found Likely To Ride Coat-Tails Of McDonald’s EU ‘Mc’ Family Of Trademarks

On July 5, 2016, the European General Court rendered an interesting decision illustrating the broad protection enjoyed by those trademarks with “a reputation in the EU.”...more

Don’t Copy “Bounty” Bars: Distributors of Chocolate Bars Prohibited from Imitating “Bounty Bar Shape”

by King & Spalding on

Mars saw a violation of its three-dimensional “Bounty” trademark and filed a lawsuit against the distributor of the “Wish” chocolate bar....more

Can You Identify Your Trade Dress?

by Foley & Lardner LLP on

Trade dress is a type of trademark intellectual property right that can protect almost any unique identifying aesthetic design used by a company, from the shape of a product, to the appearance of a website, to the decor of a...more

Famous Empire State Building Trademark At The Heart Of An Opposition Case

by Ladas & Parry LLP on

The Empire State Building has been in the heart of New York City since 1931 and was recently at the heart of a beer logo in a case heard before the Trademark Trial and Appeal Board (TTAB). In the recent case of ESRT...more

DICKMAN’S Pickles: Just Another Unregistrable Surname

The US Trademark Trial and Appeal Board has, again, explained how and when surnames may function as trademarks. In re Enumclaw Farms LLC, Application Serial No. 85942195 (TTAB June 24, 2016). ...more

Trademark Review | June 2016

by Knobbe Martens on

Coca-Cola has Acquired Secondary Meaning in ZERO for Colas - In an opposition proceeding before the TTAB, Royal Crown (RC) and Dr. Pepper/Seven Up sought to prevent registration of seventeen applications filed by...more

Trademark Review | May 2016

by Knobbe Martens on

Surname Not Registrable Absent Substantially Exclusive Use - As a result of various third-party uses of the surname “Ayoub” for similar services, Applicant’s use of AYOUB did not meet the requirement of Section (f) that...more

Trademark Review | April 2016

by Knobbe Martens on

Broad JAWS Registration Devours JAWS Cooking Channel - Mr. Recipe’s applications to register the marks JAWS and JAWS DEVOUR YOUR HUNGER were refused based on the earlier registration for JAWS, the movie. Mr. Recipe’s...more

No Room at the USPTO: TTAB Rejects Booking.com Trademarks As Generic

by Dorsey & Whitney LLP on

Many online businesses prefer to use domain names that communicate as clearly and concisely as possible the types of goods and services offered on their websites. That may be good marketing strategy. But as a recent decision...more

Drilling Down: Court Invalidates Design Patent on Wellbore Centralizer Due to Lack of Ornamentality

by Dorsey & Whitney LLP on

In an unusual patent claim construction order on March 2nd, a federal district court held a design patent invalid for functionality. This is a relatively rare outcome because claim construction in design patent cases is often...more

On Protecting “My Pillow” as Your Trademark: They Say, When You Make Your Bed, You Might Just End Up Sleeping in It

We had some great questions from the audience during the Mastering U.S. Trademark Registration Practice seminar in Minneapolis a few weeks ago. During the session on genericness, someone asked about MyPillow, expressing...more

The Coca-Cola Bottle In Europe: No Fluting, No Distinctiveness

Three-dimensional trademarks have given rise to some interesting European Community decisions in the last several months (see, for example, our comments on the Kit Kat and Lego decisions). A decision rendered last week by the...more

Acquired Distinctiveness of Trademarks in the United States

by Ladas & Parry LLP on

Business enterprises often prefer to adopt trademarks that describe the company’s goods or services because they require less of an investment to develop the brand and educate the target consumer. This is in contrast to...more

Date Me, Snog Me But Don’t Meet Me in the European Trademark Office

“Be creative!” is an important piece of advice which you often hear from European trademark lawyers. Today, more than ever, this recommendation should be taken seriously. The reason is very simple: the Community trademark...more

No Break In Fight Over Kit Kat Three-Dimensional Trademark

The story begins in the UK in 1935, when a worker at Rowntree’s York factory put an idea in the suggestion box for a snack that “a man could take to work in his pack.” This idea ?led to the famous four-finger Kit Kat...more

Airline Brand Strategery: It’s Transfarency

by Winthrop & Weinstine, P.A. on

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

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

by McDermott Will & Emery on

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...

by Ladas & Parry LLP on

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

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