-Martha Engel, Attorney

Even amid the December hustle and bustle of the holidays, my mind is never very far from trademark and patent issues – especially when getting Christmas songs stuck in my head while shopping for friends and family.  I’m prone to get two Christmas songs in particular stuck in my head – Mariah Carey’s “All I Want For Christmas” and the Twelve Days of Christmas.

Frankly, all I want for Christmas is to not get Mariah Carey’s song stuck in my head, but Santa never seems to grant that wish.  Now Tay Tay (whose trademark issues we’re certainly fond of discussing here, like here) seems poised to overtake Mariah’s songstress Christmas throne, if not Santa’s spot.  Taylor Swift recently filed 4 applications for SWIFTMAS.  Last January, a video was released showing Taylor’s Christmas gift giving and promptly labeled “Swiftmas.”  This month, Taylor’s squad filed for the SWIFTMAS mark in connection with a litany of paper goods, apparel, online store services, and entertainment services.   Even Oprah never tried to own Winfreymas (which I’ll acknowledge doesn’t quite roll off the tongue like Swiftmas).  What might you want for Swiftmas?  Is it like Festivus with an airing of grievances of the squad?

While visions of the 12 Days of Swiftmas danced in my head, I decided to see whether I could find a trademark for each of the verses of the well known Christmas carol – and mission accomplished.

On the 12th day of Christmas
my true love sent to me:
Twelve Drummers Drumming,
Eleven Pipers Piping,
Ten Lords a Leaping,
Nine Ladies Dancing,
Eight Maids a Milking,
Seven Swans a Swimming,
Six Geese a Laying,
Five Golden Rings,
Four Calling Birds,
Three French Hens,
Two Turtle Doves,
and a Partridge in a Pear Tree.

Spoiler alert before you click on all of those links, all of the applications or registrations belong to a single entity and were applied for or registered for beer.  The Bruery, a brewery located in Orange County, cleverly applied for these marks back in June 2012 to protect the names of their Twelve Days of Christmas line of beers.  However, the brewery seems to release these holiday beers in packs of 3, which sets up a bit of a problem when it comes to these trademark applications.  The marks were promptly allowed in late 2012 and early 2013, and applicants have only 3 years from the Notice of Allowance to show use of the mark, otherwise their application will be abandoned.  This Christmas season, The Bruery has released Six Geese a Laying, Seven Swans a Swimming, and Eight Maids a Milking in their 2015 holiday pack.


That leaves some ladies, some lords, some pipers and some drummers without an appearance on beer labels to support use of the mark within the 3-year period and at least one of those applications has been abandoned for failure to show use.  While the foresight to file for all 12 of these at the same time in order to protect their rights in the mark based on their intent to release a line of 12 holiday-themed beers is laudable, complementing beer production goals with a trademark filing strategy is important to an effective trademark protection strategy.  If instead they had  released more beers per holiday season, they may have been able to get all of them through before the period to show use.

What’s one of your favorite Christmas songs and can you tie it to a trademark or patent?  Have you spotted any interesting trademarks or patents in your holiday shopping this year?