Oh Trademark Registration, You’re So Vain?

by Winthrop & Weinstine, P.A.
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Ron, you’re so vain, you probably think this post is about you, don’t you, don’t you — actually, it is, or, let’s say, more about your recent in-actions — still, I hope you enjoy this cute little melody.

By the way, before fully discussing how you walk into a party or onto a yacht, do I detect a hint of apricot in the color of your stylish Likelihood of Confusion garb, might there be a matching scarf?

The week before last, walking through the Minneapolis skyway system, while reading our good friend Ron Coleman’s explanation of “why I let my trademark registration lapse,” I kid you not, a second and more physical spectacle emerged right before my eyes when crossing over 5th Street:

Ron, do I need to connect the dots for you on the striking parallels of the mysterious energy that you generated when you gave away the thing you (once) loved? Like the total eclipse of the sun?

Yes Ron, love you like my own brother, but if you were Dave, I’d help him back on the tracks, and remind him of what less than 12 cents a day buys, for those incontestable and powerful standard-character federally-registered rights over a second ten-year term. Remember, sword and shield.

The decisive inaction in allowing the lapse, reminds me of the forgotten and invisible value of deterrence. And, while I’m on board with much of the irreverent tone you can display from time to time, are you now suggesting that other brand owners turn their circle ®s upside down too?

I won’t put words in your mouth, but are you advocating for unilateral registration disarmament? Even if not, I’m left wondering, are the children or watchful brand owners likely to be confused?

After all, chalking up the original ten year old decision to federally-register your blog’s namesake as a senseless and unnecessary goof, today, because you haven’t (yet) found an occasion to enforce it, requires the omnipresent convergence of 20/20 hindsight and a flawless crystal ball for the future, all in one moment. Again, deterrence my friend, it’s beautiful and invisible.

And, as to the question of vanity, far be it for me to question yours, but isn’t tossing your circle ® in the trash, a little like saying to the world, “look mom, no hands,” after learning to ride a bike, and then daring unwise children, to knock you off? Pun and double-meaning, fully intended.

Now Ron, I know you relish a formidable challenge, like when you went (not to Saratoga), but to Washington, D.C., and your client (not horse), naturally won, the trademark case of the year. But, before leaving the question of vanity though, just wondering, after reading the favorable Tam decision, tell me, did you have one eye in the mirror, as you watched yourself gavotte?

Still Ron, don’t you think the modest investment of less than 12 cents a day is worth putting the USPTO in the position to, and give it, the statutory charge to do your enforcement bidding for you? Don’t you? Even if someone, as you seem to invite, tries something? Don’t you, don’t you?

And here’s an underworld spy question for you Ron, is there no room for the Easy Button, in your commercial litigator’s toolbox, just in case you need it, let’s say, down the road in a few?

Ron, please don’t look at me that way! When you have your hat strategically dipped below one eye, I’m left with the feeling you think I’m either still quite naïve, or full of it, nothing in between.

By the way, have you actually verified that your Likelihood of Confusion® registration never formed a bar to others at the USPTO? There are tools for that, courtesy of Towergate Software.

What we do know for certain is, it will no more, if it ever did. And, if you ever want to avoid the need for a formal opposition at some distant point in the future, if the USPTO doesn’t agree with your assessment that someone had their sights on messing with you, without your ®, you can kiss the Letter of Protest tool goodbye, as this little guy — ™ — doesn’t cut it.

Please let’s be honest Ron, it’s always easier to hang on to something and hold it in your hands than discard it and try to get it back later. I realize you’re feeling confidence in letting it go in this moment, but what if the facts or your mind change down the road?

Dumpster diving is a messy proposition. What the USPTO granted yesterday doesn’t always come as easy, if at all, tomorrow or the next day. As we all know, the USPTO is not impervious to changing its mind on how it views certain things, especially when it comes to judging the line between trademark suggestiveness and descriptiveness.

Who am I to judge your calculation of value? But let’s not forget, Ron we’ve all seen your fancy Likelihood of Confusion branded apparel. By the way, will we see those fancy threads in Seattle? Or, are they about to become a collectors item on eBay?

Let me just say, had you presented your apricot hat in hand in Orlando, and passed it around the room, I’m thinking you’d have collected more than the price of another ten year term, given the enormous and generous contributions you’ve made to our guild over the last few decades.

Ron, don’t get me wrong, I fully realize that you’re where you should be all the time, and I completely admire your sensitivity to the evil constructs of vanity, but I fear that the little voice whispering in your ear has spilled some clouds in your coffee on this one. What about the children who may be watching? Aren’t you concerned about the implication of what you seem to be saying, simply just TM it instead?

Ron, having said all that, I hope we can still be friends, as I have no doubt, there a plenty of others still dreaming that they’d be your partner:

Last, but not least, Ron, will you need reminding that yet another price of purging your vanity is that you’ll need to remove all those fancy trademark registration symbols from your blog?

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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