A Distinctive Fourth of July: Fireworks and Historical Figure Trademarks

Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Fireworks and SousaUnless you are Charlemagne or Julius Caesar, you would probably have trouble registering your name as a trademark.  This is because personal names are not generally considered to be inherently distinctive enough to qualify for trademark protection without proof of secondary meaning.  However, there is an exception for historical names that are likely to be recognized by the public as referring not to an ordinary surname, but to a specific dead person.  Leonardo Da Vinci is the quintessential example.

Does patriotic American composer John Phillip Sousa qualify?  How about just “Sousa” by itself?  In 1997, Pyro-Spectaculars, Inc., a California company, attempted to register “Sousa” as a trademark in connection with the sale of fireworks.  Pyro-Spectaculars argued that Sousa was inherently distinctive enough to be recognized as the name of an historical figure. But the PTO Examining Attorney disagreed, finding instead that the word’s primary significance was that of  an ordinary surname (derived from Portuguese, meaning “salty place”).  According to the examiner, “Sousa” was only “semi-historical.”

In 2002, the Trademark Trial and Appeal Board (“TTAB”) reversed and allowed the registration. According to the TTAB, the name of “John Philip Sousa and the patriotic music which was his legacy remain strong in the minds of the American public.” Especially in connection with the sale of something as intrinsically American as Fourth of July explosives, the public was far more likely to think that the name was being used in connection with the patriotic composer, and was not simply the surname of the owners of the company.

pyro_papagayoIronically, it was simply the surname of the owners of the Company.  Although not mentioned by the TTAB, Pyro-Spectaculars, Inc. was in fact founded by the descendants of Manuel de Sousa (nicknamed “pyro papagayo”), a Portuguese immigrant who organized fireworks displays in San Francisco in the 1900’s.  Somewhere along the way, the family name changed to Souza. Manuel’s grandson, “pyro Jim Souza,” is the current President and CEO.  Ten years after the TTAB decision, the Company now markets itself as “Pyro Spectaculars by Souza,” with nary a mention of John Phillip Sousa.  Perhaps the market decided he was “semi-historical” after all.


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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