It is State Fair time again in Minnesota, so let’s examine the Tilt-a-Whirl brand.
The brand originated in Minnesota almost 90 years ago, after the amusement park ride was invented by Herbert Sellner of Faribault, Minnesota. Since 2011 the Tilt-a-Whirl brand and trademark has been owned by J&S Rides, d/b/a Larson International out of Plainview, Texas.
The first federal trademark registration for the Tilt-a-Whirl mark issued December 14, 1926, covering “merry-go-round or carrousel” in Int’l Class 28 (generally covering games and sporting goods), which sounds a little tame and perhaps even a bit misdescriptive, since the ride is well-known to cause nausea.
The second federal trademark registration for the Tilt-a-Whirl mark issued on December 5, 1995, covering more broadly “carnival and amusement park rides” in Int’l Class 22. This strikes me as an odd classification for this expensive piece of equipment, since Int’l Class 22 covers such unrelated and eclectic products as:
“Alpaca hair, bailing twine, bungee cords, clotheslines, down feathers, hammocks, laundry bags, plastic twist ties, human hair for stuffing and padding purposes, tents, unfitted spa covers, vehicle rescue apparatus, namely, rope cables used to affix between vehicles to pull a jammed or stuck door of one of the vehicles, and waterproof bags, namely, wet bags for temporary storage of wet and/or soiled cloth diapers.”
Perhaps it was incorrectly classified in Int’l Class 22, less for what the Tilt-a-Whirl is and does, and more for what you might need before or after experiencing a ride on one. I experienced my last ride a couple of years ago, so my daughter has been since, and is on her own this go round.
Here’s an interesting question to ponder: Why no coverage for Tilt-A-Whirl entertainment services? The registrations only cover the product, a very expensive piece of manufactured equipment, costing more than $300,000. So, the consumers of the Tilt-a-Whirl branded product are those who operate amusement parks and rides, not those who buy tickets to ride on them.
It seems to me that to create service mark rights in Int’l Class 41 under the Tilt-a-Whirl brand for “entertainment in the nature of an amusement park ride,” the brand owner would have to operate the equipment itself to provide the entertainment service, or at least license another to do so.
To the extent the brand owner thought this one through, I’m thinking the risk of controlling independent carnival operators as trademark licensees and the resulting potential liability for any operational mishaps far outweighs the additional benefit of owning technical service mark rights in the Tilt-a-Whirl brand and mark. But, what do you think?