–Susan Perera, Attorney

It’s that time of year again, when retail stores featuring ghosts, goblins, and all things spooky begin to appear. This year multiple parties went trick or treating at the USPTO to register their trademarks for Halloween retail store services, and apparently they weren’t all reading Steve’s post from earlier this year regarding party store names.

Some of the applied-for marks this year include:

Halloween Town, Halloween Mart, Halloween America, Halloween Adventure, Simply Halloween, and Spirit Halloween.

These applications join a list of frighteningly similar Halloween mark registrations for retail store services including:

Halloween City, Halloween Express, Halloween Central, Halloween Headquarters, Halloween, U.S.A., Halloween Experience, Halloween Scene, Totally Halloween, and Haunted Halloween Store.

Just like the crowded field of party store names, it appears that the owners of these Halloween marks don’t possess any magic powers in creative naming.

At first glance I thought this might be because the owners of the party store marks were also the registrants of the related marks for Halloween retail services. However, a quick survey verified that the owner of the Party City mark (senior mark) is not the registrant of Halloween City. Similarly, it appears that there is no connection between Halloween Central (senior mark) and Party Central, or Party America (senior mark) and the recent application for Halloween America.

Furthermore, none of the Trademark Examiners assigned to the junior marks identified above cited the senior mark against the junior applicant, and in none of these cases did the senior registrant oppose the junior user’s application. (Of course we will have to wait and see if an opposition will be lodged against Halloween America, which was filed just last month).

I find it eerie that the “party” mark owners have failed to protect what could be considered the only identifying portion of their marks from being registered by third parties for Halloween retail services; services  which are clearly related to party retail services.

Finally, returning to Steve’s question of whether weak names might have a role in branding, do you think the short-term nature of Halloween retail services justifies choosing a weak mark among a crowded field of Halloween marks? Or is this just another naming horror story? Even if an inherently distinctive mark is preferred, is the use of a weak mark more justified here than in the case of the party stores?

I’m not sure if it is. Although a descriptive mark quickly signals to consumers what type of services you are providing, holiday related services have a short time frame to make an impression on consumers.   If you make a positive impression on your consumers and they can’t discern your mark from the crowd the following year, it might just be a decision that comes back to haunt you.