Dan’s post from last week on the most recent land rush on the Internet — with the creation of almost infinite Internet real estate — may be a warning that this comparison will only continue to expand over time.
This potentially unfortunate Whac-A-Mole mentality, however, can paralyze some brand owners into doing nothing to protect their valuable trademarks on the Internet. What’s the point in doing anything if you can’t do everything, they cynically might ask?
The most basic answer is: Not all domain concerns are created equal, so being unable or unwilling to pursue all potential issues does not justify ignoring the most egregious (or even the easiest targets that could otherwise demonstrate the existence of a trademark enforcement strategy).
It seems to me, what the comparison really calls out for is brand owners putting a premium on the need for intelligent digital trademark enforcement strategies. Putting the brand’s head in the sand out of frustration is simply no answer.
Now, with respect to the poignant image displayed here, I captured a digital photo of the signage from a vendor at the Minnesota State Fair last year, and I’m sure it will be back again this year too, and next year, and the year after, etc. Perhaps yet another mole needing to be whacked?
In any event, seeing the trademark registration symbol, I couldn’t resist checking the USPTO database to see who owns it and how diluted the mark might be. Turns out, Mattel owns all four live trademark and service mark registrations for the WHAC-A-MOLE mark (here, here, here and here). Surprisingly, no apparent third party marks that have been or need to be whacked to maintain a broad scope of rights — Mattel appears to own this piece of trademark real estate free and clear (full disclosure, I haven’t examined the associated domain real estate).
The oldest registration is from 1992, relying on use of the mark in connection with an “arcade, carnival and amusement type activity game” (Int’l Class 28), going way back to 1977; by the way, the specimens of use filed by Mattel’s predecessor, Bob’s Space Racers are priceless.
Interestingly, there is no registered coverage in Int’l Class 41 for “entertainment services” — is this a sign that Mattel doesn’t want the headache of controlling the quality of the “entertainment services” provided by all the carnies who operate these branded games in arcades across the country in county and state fairs? If so, that would be understandable.