News & Analysis as of

Trademark Trial and Appeal Board

Sorry, Will – I AM Refused Registrations

by McDermott Will & Emery on

The US Court of Appeals for the Federal Circuit affirmed a refusal to register the mark I AM for various goods based on a likelihood of confusion with registered marks, concluding that the pseudo applicant’s trade moniker was...more

Is It Five O’Clock (or 1700 Hours) Somewhere?

by Winthrop & Weinstine, P.A. on

You’re probably familiar with the song “It’s Five O’Clock Somewhere” by Jimmy Buffet and Alan Jackson. It was the number one country single of the year back in 2003. A few years later, Jimmy Buffet submitted several trademark...more

Beyond Mere Consent: It's All in the Details

Consent agreements - in which a prior U.S. Patent and Trademark Office (USPTO) rights-holder provides consent to registration of a later-filed trademark - can be an efficient path to registration in situations where the...more

Does Explanatory Language on Your Specimen Make a Mark Descriptive?

by McDermott Will & Emery on

The US Court of Appeals for the Federal Circuit affirmed a Trademark Trial and Appeal Board (TTAB) decision denying registration of the mark FIRST TUESDAY for use in connection with lottery services and games based on...more

The Cheerios Challenge of Registering Color Marks

by McDermott Will & Emery on

The Trademark Trial and Appeal Board (TTAB) delivered a primer on demonstrating the acquired distinctiveness of product packaging or trade dress, including color marks, in refusing registration of a trademark application for...more

Supreme Court Corner Q3 2017

by DLA Piper on

MATAL V. TAM - Simon Shiao Tam leads a dance-rock band and sought to trademark the band's name: The Slants. The Trademark Trial and Appeal Board (TTAB) upheld the PTO's decision not to register the mark under § 2(a),...more

Spotlight on Upcoming Oral Arguments – October 2017

The Federal Circuit hits the road this week, hearing oral arguments in New York City, including at the Court of International Trade, NYU Law School, and Columbia Law School. This appeal arises from a Western District of...more

Wine And Spirits Are not Always Confusingly Similar

by Weintraub Tobin on

Brand litigation can be extreme in the consumer products space and even more so for alcoholic beverages (legal cannabis brand owners take note and start stockpiling your war chest). It’s not uncommon for litigation to arise...more

Following The Earnhardt’s Race To the Courtroom, USPTO Raises the Bar on Surnames

by Dorsey & Whitney LLP on

Last month we reported on the Federal Circuit decision in Earnhardt v. Earnhardt, vacating and remanding the TTAB’s dismissal of the opposition by Teresa Earnhardt (widow of Dale Earnhardt) to the “Earnhardt Collection”...more

No Twist on Pretzel Crisps on Remand

In a 54 page decision issued on September 6, 2017, the Trademark Trial and Appeal Board (the “Board”) ended (again) a long-standing dispute between snack food makers Frito-Lay, Inc. (“Frito”) and Princeton Vanguard, LLC...more

General Mills Finds Out That Yellow Is Not “Magically Delicious”: Brands Fighting To Protect Their True Colors

by Knobbe Martens on

Years after the Christian Louboutin v. Yves Saint Laurent battle over red soled shoes, trademark protection for color continues to be a hot topic. On August 22, 2017, the Trademark Trial and Appeal Board (“TTAB”) held that...more

Booking it to the District Court

by Dorsey & Whitney LLP on

A recent decision out of the federal district court for the Eastern District of Virginia overturned in part the Trademark Trial and Appeal Board’s decision that the mark “Booking.com” is not registrable on the basis that the...more

Federal Trademark Registration, the First Amendment, and Freedom of Speech: Part II

As the drum roll proceeds to the upcoming Midwest IP Institute in Minneapolis and sharing the podium with Joel MacMull of the Archer firm (and Simon Tam fame) on Thursday September 28, in a few days, I’ll be making a stop...more

Food & Beverage Litigation Update | September 2017 #2

FDA Seeks Comment on Regulation Changes for "Meaningful Burden Reduction" - Implementing an executive order titled "Reducing Regulation and Controlling Regulatory Costs," the U.S. Food and Drug Administration (FDA) has...more

Cheerios Registration Refused for Yellow Color Mark

For the past couple years, General Mills has battled to register a yellow color mark in connection with its Cheerios® breakfast cereal. More specifically, back in 2015, General Mills applied to register (Serial No. 86757390)...more

The Washington Redskins Win Their Trademark Battle in Overtime

by Garvey Schubert Barer on

Simon Tam of the Asian rock band, The Slants, probably was not envisioning an 8-year-long legal battle when he chose the group’s name. Slant is known as a racial slur for Asians. Tam hoped to strip the term of its derogatory...more

Ongoing Family Feud over Earnhardt Name

by McDermott Will & Emery on

Addressing the Trademark Trial and Appeal Board (TTAB) finding that EARNHARDT was not primarily merely a surname, the US Court of Appeals for the Federal Circuit remanded the case to the TTAB to clarify its surname analysis....more

Food & Beverage Litigation Update | August 2017 #3

As plant-based beverages appear on more store shelves, the definition of “milk” has become the center of a dispute involving legislatures, regulators, litigators and industry groups. Shook Partners Katie Gates Calderon and...more

Under The 2EA: TTAB Holds Little Mermaid Merely Descriptive For Dolls

by Ladas & Parry LLP on

In a precedential decision in In re United Trademark Holdings, Inc, Serial 86836082 (June 13 2017), the Trademark Trial and Appeal Board (TTAB) has held that LITTLE MERMAID used in connection with “dolls” in Class 28 is...more

The Earnhardts’ Race To the Courtroom: Who Will Get The Checkered Flag?

by Dorsey & Whitney LLP on

On July 27, 2017, the Federal Circuit decided Earnhardt v. Earnhardt, a trademark collision between two relatives of the famous race car driver, Dale Earnhardt. The case involved an appeal from a TTAB decision between Teresa...more

When is July 4 this year? When is North Carolina’s FIRST TUESDAY Lottery? and Descriptiveness

In In re North Carolina Lottery, [2016-2558] (August 10, 2017), the Federal Circuit affirmed the refusal of registration of FIRST TUESDAY in connection with lottery services and games on the first Tuesday of each month....more

Joust Do It? A New Form of Nike Battle Cry?

By now, you’re familiar with my enjoyment in capturing and sharing new billboard signage that hits the streets of the Twin Cities. Question, what tagline might have inspired this one?...more

Fresh From the Bench: Precedential Patent Cases From the Federal Circuit

This was a busy week for precedential cases at the Circuit. In AIA v. Avid, the Circuit rules that there is no right to a jury trial as to requests for attorney fees under § 285. In Romag v. Fossil, a majority rules that the...more

will.i.am: registered.u.r.not

In In re I.AM.SYMBOLIC, LLC, [2016-1507, 2016-1508, 2016-1509] (August 8, 2017), the Federal Circuit affirmed the decision of the TTAB affirming the Trademark Examiner’s refusal of registration of the mark I AM on grounds of...more

Food & Beverage Litigation Update | August 2017 #2

Chicago SSB Tax May Cause State to Lose Federal Funding, USDA Warns - According to a warning letter from the U.S. Department of Agriculture (USDA), the sugar-sweetened beverage (SSB) tax that took effect in the Chicago...more

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