Worries about having a white Christmas in Minneapolis and elsewhere have been quiet this year. Thus far, we have spent far more than our typical time shoveling some especially heavy wet snow this holiday season, but don’t get me wrong, I’m not complaining.
I do have snow on my mind, however, because each time I think we might be done shoveling, we look out the window and there is more to tackle. So, with each trip outside over the last couple of days, I’m feeling less and less like the ambitious viking dude shown above.
Who is he anyway?
Might the artwork be a promotion for the Minnesota Vikings and their foreshadowing of the Super Bowl spoils they hope to bring home during the 2009 football post season?
(For a clever ESPN Sports Center commercial featuring Ragnar and Adrian Peterson, enjoy here).
Nope, the entire image is a non-verbal non-traditional federally-registered service mark, covering the "transportation of goods by ground transportation," and it apparently is owned by a gentleman named Eduardo Gonzalez, doing business as Freezman Transport, based in, of all places, La Jolla, California:
So, here’s an interesting question to ponder over the holidays, can a non-verbal service mark be refused registration as primarily geographically deceptively misdescriptive? Here’s the three part test: (1) The primary significance of the mark is a generally known geographic location; (2) the consuming public is likely to believe the place identified by the mark indicates the origin of the goods or services when, in fact, they do not come from that place; and (3) the misrepresentation was a material factor in the consumer’s decision.
Know of any non-verbal marks that meet this test? If so, they are unregistrable even if acquired distinctiveness can be shown, since no secondary meaning or Section 2(f) evidence will save such a barred mark under Section 2(e)(3) of the Lanham Act.
A while back, John Welch over at the TTABlog discussed some interesting applications of the test for primarily geographically deceptively misdescriptive marks (albeit with some verbal mark examples), here and here.