As a frustrated and bored Minnesota Vikings fan, Monday Night Football last evening caught my attention with the division battle between the Green Bay Packers and the Chicago Bears. In case you missed it, the Packers lost to the Bears, despite the Packers typical home field advantage at the legendary Lambeau Field.

As much as the plentiful Packers fans in our office grate on those who still claim to be Vikings fans, I already can hear the celebrations brewing around the water cooler later this morning.

The novelty hat depicted to the left got a lot of air time during the game, probably more than Aaron Rodgers, given his early injury and exit from the game. It even found its way into a State Farm Insurance commercial featuring a crazy Packers fan flying off the wing of an airplane.

In case you’re wondering, the configuration of the novelty hat is protected as a federally-registered non-traditional trademark in the color yellow/gold. The term CHEESEHEAD also is federally-registered as a word trademark for novelty hats. Who owns these trademarks? Neither the Packers nor the NFL — the rights are owned by a brilliant company, with roots in the south side of Milwaukee, called Foamation.

Seems as if the notoriety of Foamation’s novelty hat and brand is growing, so it is only fitting that the product offerings expand beyond the original novelty hat to include all sorts of other novelty headwear, apparel, drinkware, and other gift items.

Given this cheesy brand extension, it is good to see that Foamation recognizes the importance of expanding its trademark portfolio beyond the original novelty hat trade dress and word mark to capture the essense of the trade dress as it migrates to other differently shaped products: “The mark consists of the color yellow/gold and a pattern of pock marks which are circular or oval-shaped depressions applied to the entire surface of the goods in a manner evoking the appearance of cheese.”

Unfortuantely, Foamation is encountering some problems at the USPTO, so we’ll see how much cheese Foamation is willing to invest in overcoming them.

Within the last few weeks the USPTO issued a final refusal on two substantive grounds. The assigned Examining Attorney is maintaining the “failure to function as a trademark” registration refusal, and she is also continuing to refuse registration, asserting that the above drawing of the mark does not match the specimens of use.

Stay tuned, we’ll keep you posted on developments with this interesting non-traditional trademark application.

But until then, gotta love the creativity and ingenuity that flows from an unhealthy sports rivalry, meet the GRATERHEAD: “For too long, the Packers and their fans have raided our stadiums, drunk our beer, eaten our food, and beaten our teams—all while wearing ridiculous wedges of cheese on their heads.”

So, has the CHEESEHEAD finally met its match? It apparently did last night, but in a friendly effort to pander to those grating Packers fans in our office, there is a lot of season yet. We’ll see.

What other anti-Packer and trademark-worthy headwear might we see down the road?

  • Derek Allen

    If you want to find headwear that goes against everything the Packers stand for (e.g., championships, diehard fans, and superior quarterback play), you’d be hard pressed to find something better than a Viking helmet.

  • As a trademark for product design, it seems like the issue should be the aesthetic functionality of the applied-for cheese design and whether secondary meaning has been acquired. And in that case, the problem appears to be an overly broad description of the mark – yellow + pock marks everywhere = cheese – applied to overly broad description of goods, for example, hats and ties (i.e., not “foam hats” or “foam ties”). This seems to be the problem that the examining attorney has with the mark, but instead is identifying the problem as a lack of a fixed pattern, i.e. a phantom mark, intention to register a concept, or calling it merely ornamental texture feature (this is probably the closest the examining attorney gets to calling it aesthetically functional.) So as a matter of strategy, If the applicant sought registration under 2(f), narrowed its description of the mark to yellow “foam” with pock marks in the foam and limited its description of goods to “foam [goods],” I think despite the threat of aesthetic functionality the competitive disadvantage would be minimized, secondary meaning could be established, and the mark might succeed – like the leather weave pattern in the Botenga case from September 30 of this year. Otherwise, broadly protecting a cheese pattern on hats, ties, or other clothing items probably goes too far and probably should be refused.

  • Martha Engel

    While not headwear, having spent an appreciable amount of time in Packer Territory with great friends, I wear my Purple Vikings Favre #4 jersey around them any chance I get.

  • Tim Sitzmann

    As headgear, a cheese grater seems uncomfortable. But I could see cheese grater-styled cowbells becoming a big hit among Vikings fans.