So, these events were all before my time, but I’m left wondering if there was any connection between them, back in the day, or whether they were an unrelated coincidence of events.

Either way, who could have known and who would have guessed that more than fifty years later, the Super Sized sandwich brand would be truncated to “mac” — no less in all lower case style?

Still looks big enough to require a knife though. One of the other things that intrigued me about this billboard is the federal registration symbol on the “mac” reference, because I hadn’t previously seen or noticed any use by McDonald’s of MAC or mac standing alone.

Turns out, despite my best investigative efforts in scrolling through some 123 USPTO records for McDonald’s and a multitude of third-party registrations for a wide variety of goods and services ranging all the way from hair pieces and wigs to boat seats to lip gloss, and then all the way to apparent evidence of some peaceful coexistence with Mac’s fried pork skins, all I could find for McDonald’s was a pair of abandoned MAC applications from 1994, and a few federally-registered slogan marks incorporating the “mac” term: (a) Get Your Mac On; and (b) Are You Mac Enough?

Do you suppose that the creatives behind this work of art thought the sheer size of the sandwich might double as a visual representation of the missing — or perhaps, supposed redundant word “big” — if so, the trademark types should know better, as it’s definitely not an equivalence the USPTO or the courts would recognize for purposes of Big Mac trademark use. Leaving me to wonder whether McDonald’s has gotten the memo on proper use and misuse of the federal registration symbol?

In the end, it would appear that this mac needs a knife too: It might double as one for dining and one for legal surgery to remove the errant federal registration symbol, at least for this mac.

How are ties played out when it comes to brands as compared to generic product names?

Although actual ties seem quite rare in our world of very precise measurement, the Trademark Trial and Appeal Board (TTAB) is being asked to decide who wins if there is a “statistical tie” between those relevant consumers who understand a designation as generic and those who understand it as a brand name, as part of a high-profile, four-year-long trademark dispute over registration of the “Pretzel Crisps” snack food product name: Frito-Lay North America, Inc. v. Princeton Vanguard, LLC.

The case is proceeding to trial at the TTAB because prior attempts by both parties to have the question of genericness decided on the basis of summary judgment failed. On February 9, 2011, the TTAB denied Frito-Lay’s motion for summary judgment which had sought a ruling that ”pretzel crisps” is another generic name for “pretzel crackers” (pdf of decision is here), and on September 5, 2012, the TTAB denied Princeton Vanguard’s motion for summary judgment which had sought a ruling that “pretzel crisps” is not a generic name for “pretzel crackers” (pdf of decision is here).

A few months ago the trial briefing was completed and the parties now await the Board’s scheduling of oral argument. The trial briefs are a fascinating read, highly experienced and competent counsel on both sides, see for yourself: (1) Frito-Lay’s Trial Brief; (2) Princeton Vanguard’s Trial Brief; and (3) Frito-Lay’s Rebuttal Brief.

To the extent the survey evidence and testimony found credible and given weight by the TTAB shows the percentage of respondents equal and on opposite ends of the brand/generic divide, what would you consider persuasive to break the tie?

No doubt Coca-Cola will be popping a top and opening a little happiness when it learns that it won’t have to spend the time or effort to formally oppose an entirely ridiculous intent-to-use trademark application filed earlier this year by ”Harvey W. Wiley, d/b/a We The People” (apparently located in Chattanooga, Tennessee).

The application seeks to register COCA COLA, without a hyphen (as if that makes a difference), for “Colas; Non-alcoholic beverages, namely, carbonated beverages.” Last Friday, the USPTO promptly delivered to Mr. Wiley both barrels of sticky syrup in a 57-page Office Action and registration refusal. It should be safe to trust that this application will never proceed to publication, but it should leave us all wondering what on earth the Applicant is thinking.

Perhaps the whole trademark filing is a hoax, since it appears “Harvey W. Wiley” is a known historical pioneer consumer activist, as noted by the FDA. Moreover, Applicant Harvey can’t seem to make up his mind on his actual name, as he signed the application as the “Owner” – ”Harvey W. Harvey,” then he signed as “General Partner” – ”Harvey Wiley,” a few months later in a voluntary amendment to disclaim exclusive rights in the term COLA.

This is truly bizarre behavior. You’d think the $275 governmental filing fee would act as a sufficient deterrent for utterly wasting the time of USPTO Examining Attorneys, but apparently not for this Harvey.

And now, for the rest of the story, to quote an entirely different Harvey.

Thankfully for Coca-Cola, its portfolio of federally-registered Coca-Cola marks should avoid its need to waste any time on this one, with special thanks to the USPTO, of course.

To the extent this billboard looks familiar (admittedly a more diminutive glass here), you might recall my questions about it three years ago: Marketing Nirvana for Twitter?

Kyle did a pretty solid job of answering those questions, do you agree with his assessment?

Here are a few more: Is it time for a new Summit billboard ad? Does Summit only buy billboard ad space obstructed by power-lines?

For other possible examples of nominative fair use, check them out here.

“Is it trademark infringement if a fictional company or product in a movie or television drama bears the same name or brand as a real company or product?”

For the long drawn out answer, check out Fortress Grand Corporation v. Warner Bros. Entertainment Inc., decided by the U.S. District Court for the District of Indiana last week.

For the short, but delayed answer, complete with Duets flair and my personal insights and perspective on the subject, you’ll need to check back here later today — sorry for the delay.

Federal trademark registration data confirms the first use date to be July 8, 1916. The description of the contour bottle design mark in 1960 was: “The trademark consists of the distinctively shaped contour, or confirmation, and design of the bottle as shown”:

The silhouette or outline of the contour bottle design stands alone as a federally registered trademark even without words:

The negative image or silhouette of the contour bottle design is also federally registered as a trademark:

And, now the outline or partial image of the contour bottle design shape even finds itself in multiple other federally-registered formats for the Coca-Cola brand:

Do these examples make it the most famous fluid trademark that no one is talking about — when they’re talking about so-called fluid trademarks? Sorry, Google Doodles.

Will there ever be a more iconic bottle design or product container? Sorry, Pepsi, no chance.

The beauty in the design to trademark types, of course, lies in the fact that the shape can be owned as a trademark, forever . . . .

Perhaps the thinking behind the uncomfortable spectacle ads is to put aside embarrassment of the topic with an in-your-face campaign designed to shock Minnesotans into action by taking advantage of certain free screenings to detect early signs of colo-rectal cancer, for women too:

Here is the last one in the billboard advertisement series that I captured with my iPad within the last month, as you can tell from the snowy background:

Hopefully MDH will publish a report on the effectiveness of this campaign, explaining how MDH measured its success.

Finally, for those of you aware of my interest in irony, the last billboard image shown above also leaves me fairly certain that billboard rental is done in a vacuum without knowing about any potentially nearby signage that might create an opposing view on the billboard’s message.

In so many words, our good friend and wise guy Ron Coleman, over at Likelihood of Confusion, described the “trademark bullying” panel as, let’s say, rather muzzled. While I agree that one had to strain to hear any insights, perspectives, or opinions, I prefer the more comprehensive straitjacket metaphor (Hannibal Lecter style) over the mere muzzle, because it obstructs well beyond simple vocal chord vibrations and stills the wildest of “dangerous” body language too, even the likes of this little guy’s gyrations. Yet, Ron critiqued the audible portion of the panel discussion and explained the unfortunate situation this way:

“Similarly, want to talk about trademark bullying?  Briefly mention two or three examples (oddly enough, using “the same examples you might find mentioned in this article) and conclude that they’re not really bullying (kind of like in that article, actually!) (and no — don’t cite the article!  Duh!).  Apologize for not discussing any actual examples of trademark bullying because doing so might offend a the-INTA member company, or, aw shucks, one of my clients, wouldn’t you know? (This actually happened – again resolving, definitively, my original dumb question.)  Then come around to the edgy, original conclusion that maybe we shouldn’t write dumb cease and desist letters any more — you know, what with these crazy kids and their Intertubes and all.”

“It’s easy to crack wise, but the reason, Mr. Wiseguy Blogger, those guys are up there on the panel and you are not is that the people on the panel understand what to say and when to say it.  And when not to say it.”

“And, not to get to all Kurt Gödel about this, but you.  Do.  Not.”

A non-attorney friend of mine recently described how he plans to provide valuable insights and information on his forthcoming blog, but he also “will certainly poke the bear.” The “bear” in his non-legal industry, that is, not a cute, cuddly teddy bear. So, if INTA is an industry bear, Ron, consider it poked (more than a few times). Well, I suppose, it’s not my first time either.

Anyway, back to the problems with INTA’s ”trademark bullying” panel discussion (after seeing IPKat’s similar perspective, does that make this post the “tipping point” on the subject?).

In short, Caveat Emptor (“let the buyer beware”) was the word of the hour.

There were so many caveats offered by the moderator at the outset, I lost track of them, except this one: To avoid offending any trademark owners or their counsel, the panel would limit themselves to “just the facts,” no opinions or “judgments” about whether any “trademark bullying” lines have been crossed.

Call me crazy, but I’m thinking more than a few trademark types pay four figures to register for the Annual Meeting, expecting more than legal facts (facts without analysis or opinions can more easily be found on most Big-law firm websites and blogs) — instead, hoping for some valuable insights, perspectives, and well, opinions on the subject at hand, but by all means, answer some questions (or, at least ask some questions of the audience).

Perhaps the juxtaposition of these images says it all:

So, if some other form of “time” actually had “permitted” and the panelists actually had been inclined or “permitted” to share their opinions or “judgments” about the examples or topic, what might you have asked them about trademark bullying?

Last, while we’re on the subject of caveats, INTA might be wise not to forget this one: Caveat venditor (“let the seller beware”). If INTA doesn’t remove the straitjackets from their speakers and also find qualified speakers who won’t self-impose them, the number of trademark types filling nearby hotel rooms to attend the UN-TA may begin to outnumber those paying four figures to register for the official INTA event.

And, recognizing the heavy dose of irony contained in the coming link, when will “ambush marketing” begin to target INTA events?

It’s such a slippery slope.

Later this month, Strafford will host a webinar called “Leveraging Fluid Trademarks: Best Practices for Creating and Using Fluid Trademarks to Enhance Brands Without Compromising IP Rights.”

So, what’s with the umbrellas? The Minneapolis St. Paul International Airport displays the above interactive umbrella signage promoting Travelers insurance. Now, I don’t purport to comprehend the technology that makes it possible, but the result is pretty cool, because as airport “travelers” pass alongside these interactive signs the red flower petals that form the silhouette of the umbrella disperse and scatter randomly until he or she is fully past the sign and then the petals reassemble themselves into the form of the original umbrella silhouette:

The first time I recall encountering the “fluid” trademark label was in a LinkedIn group discussion (TTAB Law Forum) in December of 2011.

When did you first encounter the “fluid” label?

Judging from USPTO trademark filings, it looks like the cutesy “Bass Friends Forever“ tagline is intended to adorn clothing items too.

You will recall that we have consistently covered various iterations of the Rapala billboard ads over the last five years:

• Rapala Fishing Lures: More Hits Than Google? Or, More Cats Than You Can Shake a Stick At?
• Rapala’s “More Hits Than Google” Billboard Update (Photo Included)
• Good Bye Google, Hello Whudjagiddumon?
• Rapala Taunts a Monster?
• Rapala: Happy Fishing on Mother’s Day

Despite the annual rotation of taglines (nicely creating yearly anticipation), there is a very consistent look to the billboard ads, with the Google-like clean white background, the contrasting red-colored Rapala logo, the eye-popping black-colored words for the new season, and finally the same artificial lure positioned top and center. This consistent use leaves me wondering about non-traditional trademark protection for the particular lure, not knowing whether it is unique to Rapala or a generic, functional, public domain lure design. Anyone, anyone?

As it turns out, while I suppose it is possible Rapala enjoys design patent protection for the repetitively seen lure, there are currently no trademark filings to cover it, which is particularly interesting as Rapala does have a few federal trademark registrations for some other fishing lure configurations (that it appears to have acquired from Blue Fox Tackle Company):

Are there any hardcore fishers of men and women who might be able to explain why these product configurations are more important to protect than the one appearing on billboard ads — almost as a non-verbal company signature?