-Wes Anderson, Attorney
Strolling around the Mall of America last weekend, I was surprised not only by the rather low weekend crowds (everyone must have retreated to their respective lake cabin) but also the brand-new store for Swedish outdoor brand Fjällräven. What with my highly-attenuated Swedish ancestry, I couldn’t help but stop in.
The company’s perhaps best known for its Kånken backpacks – small and prominently-branded, you have almost certainly seen one regardless of where you’re located. They’re also have a line of excellent outdoor products, in the vein of The North Face and Columbia, like the Skogsö jacket.
What I couldn’t help but notice was Fjällräven’s prominent and frequent use of the Swedish language’s additional three letters – Å, Ä, and Ö. Perhaps you noticed the last paragraph was littered with them. It’s not only because of the Swedish words that litter the catalog (Fjällräven means “Arctic Fox”), but also a marketing technique to emphasize the outdoorsy Swedish-ness of the brand–and accompanying European import prices. So what do these letters have to do with U.S. trademarks? Well, these three letters are right at home in Göteborg, but do they have any place at the United States Patent & Trademark Office, the keeper of English-language marks?
We frequently recommend that trademark owners register their bread-and-butter word marks in a form known as “Standard Characters” — essentially, a format that claims trademark protection for the wording only, without any typeface style or other design elements. This requires entering the words into the PTO’s trademark application, which then converts the text into regular old Times New Roman. This provides the broadest possible protection for a word mark, as it allows the owner to prove up use regardless of the font or design elements that accompany the mark in actual marketplace use.
So if your brand’s logo changes from year to year (I’m looking at you, Facebook), a standard-character registration will do the trick.
But what about foreign words with a wider range of characters at their disposal? Are these nonetheless “standard” and acceptable by the PTO? It turns out that just about any Latin character you’ve accidentially pasted into a Word document is also probably acceptable in a standard-character trademark application. The Trademark Manual of Examining Procedure states that the PTO has its very own “Standard Character Set,” available here, that lists each of the letters and symbols a trademark applicant may use in a standard-character drawing. This includes the three additional Swedish letters as well as many known favorites like Æ, œ, and Ø.
Many applicants, however, (perhaps intentionally) substitute foreign-language characters with its more mundane A-Z analog (for example, MUNCHEN instead of MÜNCHEN or SMORGASBORD instead of SMÖRGÅSBORD). This isn’t necessarily a problem for the trademark applicant but it can raise confusion as to whether the mark is an “Americanized” version of a foreign word or is trying to use the word itself. Luckily, the PTO has provided a way for foreign marks to remain faithful to their true spelling while retaining the broad protection of a standard character registration. Skål!