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Category Archives: Non-Traditional Trademarks

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Louboutin: Still Waiting on the Second Circuit Court of Appeals

By on Posted in International, Law Suits, Non-Traditional Trademarks, Trademarks

When I snapped this photo over a month ago in Las Vegas, I figured it wouldn’t be much longer before we hear from the Second Circuit Court of Appeals in the Christian Louboutin v. Yves Saint Laurent red sole trademark infringement case. Trademark types are anxiously waiting to hear whether the district court’s denial of Louboutin’s… Continue Reading

B-Dubs’ Yellow Protected

By on Posted in Agreements, Food, Infringement, Law Suits, Non-Traditional Trademarks

Last week Jim Hammerand at the Minneapolis/St. Paul Business Journal reported on locally based Buffalo Wild Wings (also known as “B-Dubs”) ending its lawsuit against Buffalo Wings & Rings, the suit had included claims of trademark and trade dress infringement. It appears that under the terms of the settlement agreement, Buffalo Wings & Rings will… Continue Reading

Louboutin Red-Sole & Surrounding Contrast: An Implied Trademark Limitation

By on Posted in Articles, Branding, Fair Use, Infringement, International, Law Suits, Marketing, Mixed Bag of Nuts, Non-Traditional Trademarks, Sight, Trademarks

The Louboutin lacquered red sole trademark is the subject of great debate in the trademark world, fashion industry, popular news media, and among law school academics and friends of the court. I’m just not seeing it. I really don’t see a viable trademark claim here for Louboutin. Not for the reasons found by the district court — I… Continue Reading

I’m Dye-ing to Know

By on Posted in Advertising, Non-Traditional Trademarks, Sight

For those of you who frequent DuetsBlog, you’ll know that color trademarks are a common topic of discussion. Steve Baird posted an excellent and thought provoking post just recently discussing Louboutin’s efforts to litigate the boundaries of its rights in the color red. It is generally accepted that color trademarks can receive protection upon obtaining ”secondary meaning” (i.e…. Continue Reading

Louboutin Red: Blending Into the Background

By on Posted in Branding, Fair Use, Infringement, Law Suits, Non-Traditional Trademarks, Sight, Trademarks

A purely hypothetical puzzle, but I’m wondering, would Christian Louboutin have a viable trademark claim if Yves Saint Laurent sold women’s shoes in boxes bearing the above seemingly random grid of letters, each letter having equal type, style, font, color and emphasis? For those of you who answered with a strong “of course not,” I suspect your answer must change if selected… Continue Reading

Changing Your Brand Color: No More Golden Arches?

By on Posted in Advertising, Branding, Famous Marks, Food, International, Marketing, Non-Traditional Trademarks

Last year I had a running discussion on color trademarks.  I blogged about the issues surrounding the protection of a color as a non-traditional trademark, the impact of industries clustering around a particular color, and the concern that functionality may impede protection of a color trademark.  Need a refresher? Check here, here, here, and here…. Continue Reading

Grab Some Buds and Pop a Red Top (or Tab)?

By on Posted in Branding, Marketing, Non-Traditional Trademarks, Product Packaging, Trademarks

Given how much we know you enjoy the subject of non-traditional trademark protection, here is a recent one from Anheuser-Busch: The description of the mark reads: “The mark consists of a design feature of product packaging, namely, a red colored tab on a can, which features a crown design that is transparent. The dotted lines… Continue Reading

Webinar: Hot Marketing Topics with Trademark & Legal Implications

By on Posted in Branding, Genericide, Guest Bloggers, Look-For Ads, Loss of Rights, Marketing, Non-Traditional Trademarks, Product Configurations, Product Packaging, Trademarks

Last week I had the distinct pleasure of participating in a ninety-minute webinar with my good friend, frequent and eloquent guest-blogger on DuetsBlog – Aaron Keller of Capsule – complete with some friendly banter on the following: "Hot Marketing Topics with Trademark and Legal Implications." Minnesota Continuing Legal Education has generously provided a link where the webinar can be viewed in its entirety, here. As you’ll… Continue Reading

INTA Seeks to Aid in Protection of Color Trademark

By on Posted in Law Suits, Non-Traditional Trademarks, Trademarks

The International Trademark Association (“INTA”), formerly known as the United States Trademark Association (USTA), has been around since 1878—longer than the color trademark and high-end designer shoes.  It is a not-for-profit organization dedicated to the support and advancement of trademarks and related intellectual property concepts as essential elements of trade and commerce.  This important organization… Continue Reading

The Smell of Fear

By on Posted in Branding, Guest Bloggers, Marketing, Non-Traditional Trademarks, Smell, Touch

—Aaron Keller, Principal at Capsule During this time of year there are plenty of fright “experiences” where you can drag a loved one into a heart thumping confrontation of fear. These experiences are elaborately designed and those who attend know the rules, like “this one doesn’t allow the characters to touch you.” Apparently others do… Continue Reading

Dilbert Advocates Trademark Shape Depletion Theory

By on Posted in Non-Traditional Trademarks, Product Configurations, Trademarks

Remember the days when the color depletion theory justified courts and the U.S. Trademark Office in denying any federal trademark protection for single colors, per se? This was the status of the trademark law for many decades, at least until the Court of the Appeals for the Federal Circuit disagreed in 1985 (In re Owens Corning Fiberglas… Continue Reading

Enforcement of U.S. Copyrights in the U.K.

By on Posted in Copyrights, Guest Bloggers, Infringement, International, Law Suits, Non-Traditional Trademarks, Product Configurations, Trademarks

Simon Bennett, Partner and Head of Intellectual Property, Fox Williams LLP, Solicitors George Lucas defeat over Stormtrooper helmet design replicas creates ability to enforce U.S. copyrights in the UK.    The Supreme Court of the United Kingdom has ruled against George Lucas’ company Lucasfilm in the latest episode in a copyright and designs battle against a… Continue Reading

Quilted Toilet Paper Design Flushed As Functional

By on Posted in Law Suits, Loss of Rights, Non-Traditional Trademarks, Trademarks

As the court ruled, and repeatedly reminded: "Toilet paper. This case is about toilet paper." Just last week the United States Court of Appeals for the Seventh Circuit enjoyed applying only a modicum of potty humor while deciding Georgia Pacific Consumer Products LP v. Kimberly-Clark Corporation, a case involving alleged non-traditional trademark rights in Georgia-Pacific’s Quilted Diamond… Continue Reading

Touchmarks, Trademarks & Tixels

By on Posted in Branding, Marketing, Non-Traditional Trademarks, Touch, Trademarks

Augmented Legality writes: "Soon, technologies that augment our sense of touch may lead to a rush of trademark applications seeking to protect a wide variety of artificial textures." Brian Wassom goes on to identify an interesting new technology being promoted by Senseg, a Helsinki-based company that apparently knows a lot about tixels (tactile pixels): "Senseg E-Sense makes use… Continue Reading

Intellectual Property Plaintiff Admits to Being Ignorant?

By on Posted in Copyrights, Goodwill, Infringement, Law Suits, Non-Traditional Trademarks, Trademarks

About a week ago another interesting federal intellectual property case was filed in the District of Minnesota: Fantasy Flight Publishing, Inc. v. Puffin Software et al. Although the four count complaint includes a federal unfair competition claim, a Minnesota deceptive trade practices claim, and a common law unjust enrichment claim, the case really appears to be centered around the copyright infringement… Continue Reading

Baird on Branding & Trademarks

By on Posted in Advertising, Almost Advice, Branding, Infringement, Law Suits, Marketing, Non-Traditional Trademarks, Product Configurations, Sight, Smell, Sound, Taste, Touch, Trademarks

There aren’t too many things I enjoy more than speaking about the legal implications of branding. Our friends at BlackCoffee captured a talk I gave to a group of marketing types a while back, on black and white film (thank goodness), and they have graciously posted a 34 minute excerpt, here. Some of the topics I… Continue Reading

Taste Infringement?

By on Posted in Advertising, Branding, Food, Guest Bloggers, Infringement, Marketing, Non-Traditional Trademarks, Taste, Trademarks, TTAB

    We’ve spent some time here discussing the world-famous Coca-Cola brand. Most recently, David Mitchell wrote about the incredible consistency of the Coca-Cola brand over the past 125 years. A while back Dave Taylor wrote a nice Ode to the Brand of Brands, the King of Cola: Coke. And, let’s not forget my humble suggestion that… Continue Reading

Trademark Bull?

By on Posted in Advertising, Branding, Food, Look-For Ads, Marketing, Mixed Bag of Nuts, Non-Traditional Trademarks, Sight, Trademarks

In the midst of all our discussion about "trademark bullying," I couldn’t resist picking up this "No Bull" postcard from Manny’s Steakhouse in Minneapolis, Minnesota. You may recall Dan previously wrote about Manny’s promoting similar images with the phrase "One Helluva Sac Lunch". Dan also noted the irony of the best beef coming from steers, not… Continue Reading

Masters’ Marks II: The Green Jacket

By on Posted in Branding, Famous Marks, Non-Traditional Trademarks, Product Configurations, Trademarks

It is Masters time again.  See my post from last year if you think that this has something to do with graduate degrees.  Last year, I listed a number of marks of the Masters Tournament, including the Green Jacket.  Hard core trademark types will be interested to learn that last December, Augusta National, Inc. filed… Continue Reading

Aflac Duck Speechless Over Gilbert Gottfried’s Firing

By on Posted in Advertising, Audio, Branding, Contracts, Goodwill, Marketing, Non-Traditional Trademarks, Sound, Television, Trademarks

If the Charlie Sheen train wreck has not offered enough fodder for your idle moments, this week Aflac fired Gilbert Gottfried as the voice of the Aflac Duck due to tasteless jokes that Gottfried tweeted in the wake of last week’s earthquake and tsunami in Japan.  Where Sheen was the face of a hugely successful… Continue Reading

A Few Trademark Grammar School Facts

By on Posted in Copyrights, Genericide, Loss of Rights, Marketing, Non-Traditional Trademarks, Product Configurations, Trademarks, Truncation

Any recent graduate of trademark grammar school knows, at least, the following twenty facts (perhaps there is, at least, one opinion among them): A trademark identifies, distinguishes, and indicates the origin of goods; A trademark should be searched and cleared before adoption and first use; A trademark needs a trademark attorney to take a position on availability; A trademark… Continue Reading