If you have heard of Penn State, you have probably heard the phrase “Happy Valley.” The school, the students, and the media regularly use “Happy Valley” in reference to the school and the surrounding community. The school considers the association so strong that Penn State recently applied to register HAPPY VALLEY as a trademark for clothing – and received a refusal to register.

The Trademark Office examining attorney assigned to the application refused registration on the ground the phrase “Happy Valley” is geographically descriptive. This means that the examining attorney concluded the public will see the phrase simply as describing the geographic area where the school is located. The school’s own website seems to confirm the examining attorney’s concerns, as it describes “Happy Valley” as an “also known as” name for the town, State College.

But don’t worry Penn State fans. The university has a strong chance to overcome the refusals so long as Penn State can demonstrate the HAPPY VALLEY trademark has acquired distinctiveness in the minds of consumers. Marks that may initially be considered geographically descriptive or may become distinctive after sufficient use of the mark in commerce.

For example, use of a trademark for five years or longer may be sufficient to overcome a refusal on this ground. In fact, the examining attorney expressly references this option in the Office Action. Accordingly, chances are good Penn State can overcome this refusal simply by submitting a declaration that the university has used the mark in commerce for more than five years. However, the Trademark Office will also consider other evidence such as widespread advertising efforts, significant sales numbers, and substantial media attention and publicity.

As a fellow alum of a Big Ten university (which university isn’t important), I wanted to provide some assistance in gathering evidence in support of Penn State’s potential claim of acquired distinctiveness for the HAPPY VALLEY trademark.

If you’ve heard of Penn State, you know they receive a lot of publicity for their college sports teams. For example, this ESPN article prominently uses HAPPY VALLEY to refer to Penn State with its headline “Iowa silences No. 5 Penn State in Happy Valley.”

The Penn State wrestling program is also among the best in the country. Historically, the Happy Valley-based wrestling squad has the third-most successful program in the country, with 8 (!!) NCAA national championships , just slightly trailing Iowa’s 23 national championships.

Last, but certainly not least, Penn State can point to a visit last month from the Big Ten Tournament Champions and presumptive NCAA ’s basketball player of the year Megan Gustafson. Yet again Penn State received some great publicity associating the claimed HAPPY VALLEY mark with the University, as media ran with the headline “Iowa Cruises in Happy Valley.”

With all this evidence, Penn State fans should feel good about the likelihood they’ll soon be able to purchase HAPPY VALLEY t-shirts with a ® symbol adjacent to the phrase (exclusively from a licensed retailer). Of course, if they need more evidence, I’m sure I can find some fellow Big Ten organizations that would be happy to add some new headlines in 2019.

Following a nice evening out chatting with Kevin O’Keefe, it’s time for my favorite weekend of all – the NCAA tournament.

Now this post isn’t necessarily about basketball, but rather rivalries. In particular, rivalries between the state of Michigan and the state of North Carolina. Michigan v Duke, Michigan State v. North Carolina…there’s plenty of rivalry there.

Within the last week, Michigan-based brewery Bell’s Brewery, which brews one of my favorite transported ales – the Bell’s Two Hearted Ale, has challenged the name of North Carolina-based brewery Innovation Brewing, which brews about 500 barrels a year.

Anything striking a chord for trademark issues yet?  Any idea why Bell’s might be challenging a company like Innovation Brewing?

Well because, unbeknownst to me likely because I have only ever purchased Bell’s off of a tap menu, apparently Bell’s has an unregistered tagline “bottling innovation since 1985” – a tagline that I couldn’t find use of in a very cursory search of its websites and labels.

Bell’s has faced some considerable consumer scrutiny over this challenge, even being labeled a trademark “bully.”  North Carolina loyalists are pretty upset that Michigan-based Bell’s would challenge this.

What do you think?  Is it madness? Do you have any innovative strategies to combat this issue?

No opinion on this?  Well, who do you have winning it all for the NCAA basketball tournament?

 

 

 

– Derek Allen, Attorney –

It’s the end of February, which by my calculations means its almost the beginning of March, which means OH YES FINALLY MARCH MADNESS ASDFNLEKLDFNDF!!!!!!!!!!!!!   (Apologies, I just get a little excited thinking about it.)  This is without a doubt my favorite sporting event of the year.  Once you include the conference tournaments where each of the winners get a bid to the Big Dance, starting next week every team in college basketball has the opportunity to win the national title if they can string together enough wins.  Time to get hot Grambling State!

Excitement is building here in the Twin Cities as the Gophers knocked off #1 Indiana last night, all but assuring its spot in the tournament.  Excitement is building here in my office as the Wisconsin Badgers moved to within a game of first place in the Big Ten with a team that looks a lot like the Winthrop & Weinstine rec league team.

While the tournament itself is widely regarding as the most exciting in American sports (I’ll hedge so I don’t offend the rest of the world and the World Cup, although I prefer the Euros myself), anyone who has attended the first weekend’s games knows the atmosphere in the arenas is often lacking.  A combination of teams travelling hundreds and thousands of miles from campus for opening round games, the small fan base of many lower seeded teams, and the cavernous arenas that play host to many of the games all combine for lackluster crowds.  The notable exceptions are, of course, North Carolina and Duke who somehow always get their opening round games scheduled about 10 minutes from campus.  The lack of atmosphere at non-Tobacco Road games is especially unfortunate when regular season college basketball games probably feature the most boisterous crowds in American sports (again, hedging for those abroad because I’ve never been hit with a bag of urine at a college basketball game and bonfires in the crowd are usually absent).

My partial solution is to stop scheduling these games at large, NBA (and in some cases, NFL) stadiums.  For example, when the tournament is here in Minneapolis, the opening round games have been held in the Metrodome.  The stadium gets filled to 20% of capacity and the atmosphere is terrible.  Meanwhile, the Barn is perhaps my favorite arena in the Big Ten and sits idle about two miles away.  NCAA, schedule the games at the Barn!  Not to leave my home state out, opening round games should be played at the Kohl Center (or better yet, the Field House), not the Bradley Center where they usually occur.

For those interested (I’m looking at you NCAA!), my 16 suggestions, which would host the opening games ever year, are below the jump:

Continue Reading Tweaking March Madness