As you know, I enjoy telling trademark stories about soaps encountered on my various trips:

Lather® (brand) soap recently caught my eye — and the lens of my iPhone — while in Palo Alto.

Interestingly, the USPTO has treated the word as inherently distinctive, in Lather’s registrations.

In other words, not merely descriptive, even though using the product surely produces some.

So, some imagination, thought, or perception is needed to understand the connection with soap?

If so, I’m thinking Lather® soap is certainly close to the line between descriptive and suggestive:

Brand managers, would you be in a lather if faced with these other “lather”-styled soap marks?

Trademark types, what gets you all lathered up when it comes to trademark enforcement?

In April, news broke that two iconic alcohol brands were joining forces to create a remarkable new beer: Jim Beam Budweiser Copper Lager. Fruit of the joint labor is now available for consumption:

The unique combination doesn’t appear destined to fall flat, as in the early days since launch, it seems to be attracting even self-professed “craft beer snobs,” which is probably the point for Bud.

When iconic brands come together in a co-branding arrangement, it’s interesting to note visual manifestations of the joint trademark use guidelines, a peek into who’s steering the Clydesdales.

Not surprisingly, the reigns of the Clydesdales appear most closely held by Budweiser, as the Copper Lager is beer, not whiskey, and BUDWEISER is the largest wording on the packaging.

That said, the Jim Beam brand name and logo does adorn the six pack carton’s front face with top line prominence, suggesting the brand power it brings to the party – liquid version of Intel Inside?

Figuratively though, not literally, as the Copper Lager isn’t a boilermaker beer cocktail, instead the Jim Beam name and logo indicates aging of the lager on genuine Jim Beam bourbon barrel staves.

One of the things the packaging does well, from a trademark perspective, is keeping the visual identities of the brands separate and distinct, as they appear together in this joint branding effort.

It’s really not a good idea, from a trademark perspective, to mix and blend the combined brands into a single new visual identity, as doing so raises questions of ownership and how to untangle.

So, the packaging does a nice job of keeping each sides trademark elements physically separable while communicating why Budweiser invited Jim Beam to team up for this Copper Lager party.

The trademark filings tell stories too. The only filings currently on the USPTO database that contain the terms Copper and Lager in a mark are owned by Budweiser parent, Anheuser-Busch.

So, Anheuser-Busch views the Copper Lager name to be part of the Budweiser Copper Lager and Budweiser Reserve Copper Lager trademarks, but it disclaims exclusive rights in Copper Lager.

What we don’t know (yet) from the disclaimers, is whether Copper Lager is descriptive (capable of being owned as a trademark element), or generic (you know, meaning zero trademark rights).

If Copper Lager is not a category of beer (i.e., generic and incapable of trademark status), and instead descriptive, since this isn’t Anheuser-Busch’s first such rodeo: acquired distinctiveness?

Either way, this joint effort does appear to be Jim Beam’s first rodeo when it comes to beer, as evidenced by the intent-to-use Jim Beam trademark application it filed in April 2018 for beer.

Thankfully these brand owners are sophisticated enough not to combine Jim Beam and Budweiser into a single trademark filing, sadly I’ve seen commingling before, and it isn’t much fun to unwind.

What do you think, is this joint effort a remarkable one? Is it likely to last, stand the test of time?

There is at least one more 2018 Rapala billboard out there, just netted this one over the weekend:

Rapala’s clever Minnowsotan billboard inspired me to cast a few lines about the law concerning trademark disclaimers, as they often reel in some great questions from branding professionals.

Tim did a helpful post on trademark disclaimers, guiding why the USPTO requires them, their legal implications, and encouraging brand owners to properly resist them when they are unwarranted.

Let’s suppose Rapala sought to register Minnowsotan as a trademark for fishing lures. Putting aside wondering whether this little fish might ever attack, Rapala should lose no sleep wondering whether it would be required to disclaim “minnow” from the would-be Minnowsota trademark. No.

While it is true that “minnow” is an element of Minnowsotan, and there should be little debate that “minnow” is either descriptive or generic for a fishing lure depicting a minnow, a disclaimer is not required under the law by the USPTO when the applied-for mark is unitary (TMEP 1213.05):

“The test for unitariness inquires whether the elements of a mark are so integrated or merged together that they cannot be regarded as separable.”

“A unitary mark has certain observable characteristics. Specifically, its elements are inseparable. In a unitary mark, these observable characteristics must combine to show that the mark has a distinct meaning of its own independent of the meaning of its constituent elements. In other words, a unitary mark must create a single and distinct commercial impression.”

Using Minnowsotan as a trademark school hypothetical, it would be a pretty clear example of unitariness — with no need for a disclaimer, but what about Minnow Spoon for fishing lures?

In other words, is Minnow Spoon unitary for a fishing lure that depicts a minnow on a spoon lure?

Perhaps a cloudier answer than for Minnowsota, but usually two-word marks without compression, telescoping, or hyphenation, will require disclaimers of any descriptive or generic wording.

As it turns out, Minnow Spoon once adorned the Supplemental Register, as a merely descriptive composite mark, only capable of being distinctive, with no disclaimer of the generic “spoon” word.

Reading between the lily pad leaves, it appears the USPTO twice has considered Rapala’s Minnow Spoon to be unitary, as it allowed Rapala to federally-register the two-word mark on the Principal Register too, without a disclaimer of the obviously generic second term “spoon” for fishing lures.

Yet, that consistent disclaimer treatment appears inconsistent with the USPTO’s previous disclaimer requirement for “spoon” with the four-word Rapala Weedless Minnow Spoon mark.

Without getting too tangled up in the weeds at the USPTO, while generic matter must be disclaimed from marks registered on the Supplemental Register and the Principal Register (even under a showing of acquired distinctiveness, as was the case with Minnow Spoon), a disclaimer should not be required by the USPTO, if the composite mark is unitary.

Given that guidance, what would you expect with the “Original Finnish Minnow” mark? Well, that one was treated as not unitary, it appears, since a disclaimer of “minnow” was required. And, the same is true for Minnow Chaser and Clackin’ Minnow, as each one had “minnow” disclaimed.

The crazy thing about the “minnow” disclaimer for Clackin’ Minnow is that it was a Supplemental Registration, so the disclaimer should mean that “minnow” actually is generic for fishing lures.

A school of minnows in trademark class might be left thinking that both of the terms “minnow” and “spoon” are generic for lures, highlighting the importance of resisting them when appropriate.

You know that feeling when you’ve nearly crossed the finish line? You have done the work, put in the time, and the only step left is to run through the tape.

There can be similar moments with trademark applications, too. Admittedly, it may not be as exciting for other people, but I certainly enjoy it. But one situation frequently arises where there is just one small thing to take care of. The attorney (or owner) will get a call or an e-mail from the Examining Attorney with a brief introduction and then, “Everything appears to be in order with the application, we just need you to enter a disclaimer of the term _______.”

That’s it! Just need to say “Okay” and your mark will be published and, if no third-party objects, you’re on the fast track to having a shiny new trademark registration.

After successfully navigating the application process, you may just want to say “Okay” so you can finally run through that tape. But before you do, make sure you understand the fine print.

Under Section 6 of the Lanham Act, the Trademark Office may require a disclaimer of any “unregistrable component” of an otherwise registrable mark. The disclaimer will appear on the Certificate of Registration. For example, if you’ve registered the mark BOONDOGGLE RESTAURANT for restaurant services, disclaiming RESTAURANT, the Certificate will state “No claim is made to the exclusive right to use ‘RESTAURANT’, apart from the mark as shown.” As a result, the owner makes a statement of public record that this portion of the mark is merely descriptive.

This can make it difficult to enforce rights in trademark against third-party marks who share that disclaimed term. If you attempt to enforce your trademark against a third-party, they’ll be able to quickly determine if you have disclaimed any portion of the mark. If you have, that may provide the third-party with a reasonable basis to kindly ask that you check the sturdiness of that sand over there.

While it is not impossible, there must be some other element of the mark that is similar to your mark. For example, Purina Dog Food (owned by Nestle S.A.)  successfully opposed registration of the mark WAGGIN’ STRIPS (disclaiming STRIPS) based upon their prior rights in the mark BEGGIN’ STRIPS (disclaiming STRIPS). In addition to sharing the disclaimed term STRIPS, the marks also shared a similar structure and similar sound and therefore the Board found a likelihood of confusion. (decision available here).

Disclaimer practice makes sense for our Boondoggle Restaurant. The term RESTAURANT has no source identifying function in relation to restaurant services; it is generic. In these situations, agreeing to the disclaimer is a simple and easy .

However, disclaimers are also required for descriptive terms. And, as we’ve discussed, there is a fine line dividing descriptive wording from suggestive wording. The determination is also very subjective. While a term may be descriptive to one Examining Attorney, a different Examining Attorney might consider the term suggestive without a second thought. Like all people, Examining Attorneys are not infallible. The Examining Attorney might misunderstand your goods or services, could be having an off day, or maybe they have a heightened opinion of what qualifies as a descriptive term. Regardless, once you enter that disclaimer, it is there in the public record and can’t be swept under the rug.

Accordingly, the next time you receive a disclaimer request, take a second before you run through the tape. Ask yourself whether the term really is descriptive. Would you be comfortable with your competitors using the term? Why did you choose it? Is there a reasonable basis to assert that the term is suggestive?

Rather than take the easy way out, it may be worthwhile to invest in the time to prepare a response to the office action, arguing against the disclaimer. While it may add some extra cost on the front end, failing to explore this option can harm the strength of your trademark, which you may regret down the road.

 On this Valentine’s Day, after enduring weeks of the same endless running of national retail jewelry chain advertising, leading up to this annually celebrated day of love and affection, I thought it might be fitting to try a few retail jewelry store taglines on for size and examine — at least from a trademark perspective — their protect-ability and likely placement on the Spectrum of Distinctiveness, leaving for our friends who are genuine marketing types an assessment of the taglines’ color, clarity, carat, and cut.

(1) "The Diamond Store":

Zales apparently has been using "The Diamond Store" as a tagline for over thirty-five years, but its latest federal registration for "Zales The Diamond Store" still disclaims exclusive rights to "The Diamond Store." Also no surprise that Zales was unable to federally register "America’s Diamond Store". It appears Zales never has attempted to register "The Diamond Store" standing alone, obviously there are more than a few other competing "diamond stores" out there.

For example, the "Most Dominant Diamond Store in America" was refused registration just last month, based on mere descriptiveness. And, the very same applicant fared no better with this tagline: "The World’s Best Diamond Store" — similarly refused under Section 2(e)(1) of the Lanham Act for being merely descriptive of jewelry store services.

No imagination, thought or perception required for any of these claimed taglines, so there’s clearly no hope of being inherently distinctive, and it’s even hard to imagine any of them actually acquiring distinctiveness either, so really, what’s the point?

Marketing types, aren’t there more creative ways to communicate that you sell diamonds?

Actually, it appears Zales may have one such tagline pending: "Wish Upon a Diamond". Now, that’s much better.

(2) "Every Kiss Begins With Kay":

Kay Jewelers apparently has been using the "Every Kiss Begins With Kay" tagline for about ten years, and the federal registration reveals no disclaimers and no need for proving acquired distinctiveness, so this tagline falls squarely within the suggestive category, as an inherently distinctive mark. Bravo Kay!

Interestingly, Kay Jewelers at least used to be "The Diamond People" — and this tagline is still federally-registered, but curiously, at least one internet listing for a competing Zales store refers to "The Diamond People" — not, "The Diamond Store" as indicated above.

Amazing how substituting the word "people" for "store" can make such a difference from a trademark ownership perspective, and from a relational or emotional one too, the latter being of particular interest to marketing types, I trust.

(3) "He Went to Jared":

As far as I’m concerned, this tagline really takes the prized jewel. But, I never would have guessed so, had I been clearing the proposed tagline before its first use years ago. Why? The words themselves seem so pedestrian and on print advertisements they seem totally void of any life or emotion. I’m not saying the phrase would be merely descriptive, it probably does have sufficient creativity to satisfy the suggestive category on the Spectrum of Distinctiveness. But the bare words seem, well, boring and lifeless.

Obviously, those behind the creation of the words knew how they could be given life in television advertising. Indeed, it seems to me that what has given this tagline more life and interest (and trademark strength) than any of the others is the television advertising that provides the repetitive (annoyingly so to many) and emotional connection to the phrase. There are spoof ads galore on the web ridiculing the "He Went To Jared" ads. Clearly, this tagline resonates in very strong ways, both pro and con.

My son confirmed this for me over the weekend when he shared a funny incident in his 4th grade history class from last week. Apparently his teacher was looking for students to fill in the blank on her question, "He went to . . ., He went to . . ." — looking for the answer to be the place where Napoleon apparently went on a certain occasion, and one of my son’s friends loudly said, "JARED," and the entire class, including the teacher, burst into laughter.

Clearly, there is power in the "He Went to Jared" branding. Indeed, when typing into the Google search engine the words "he went" the top suggested search completes the request as "he went to jared".

My question is, when a trademark owner has such a recognizable tagline as "He Went to Jared" — why not federally register it? Especially when the very same owner has taken the time, effort, and expense to register the bland, laudatory, and virtually unknown "It Can Only Be Jared" tagline. This one certainly would not have drawn any laughter in my son’s history class.

Bonus questions: Did you know that Sterling Jewelers Inc. apparently owns both the KAY and JARED jewelry brands? By the way, does anyone know why both brands are maintained? Do they compete for different demographic segments of the population? Perhaps you can tell from my questions, I’ve never been inside Jared: The Galleria of Jewelry.

This little gem arrived yesterday, basically an email promotion for this weekend, featuring Randy Moss and celebrating his return to the Minnesota Vikings:

Of course, I’m thrilled too, that Randy Moss has returned to play ball in Minnesota, but that doesn’t mean we forget all about his legal rights (name, image, likeness, right of publicity, to name a few), not to mention the legal rights, trademarks, and trade dress of the Minnesota Vikings and the NFL.

By the way, the purported disclaimer at the bottom of the promotion saying: "All registered trademarks are the properties of their respective owners" doesn’t help either.  Putting aside the unanswered question about any unregistered trademarks shown in the promotion, all this statement reveals is that Lions Tap knows it doesn’t own what it is using, and it begs the question of whether the necessary permission was obtained from the necessary owners.

To the extent my assumption is correct, that Lions Tap didn’t obtain the necessary license and permission to run the above promotion, it appears Lions Tap may have forgotten all the intellectual property law it sought to teach McDonalds earlier this year when it filed a suit for trademark infringement over the Who’s Your Patty tagline . . . . 

Continue Reading Honoring Randy Moss Doesn’t Make It Fair Use

On a recent pilgrimage to my home town to visit the University of Iowa and to see the Hawkeyes play football again in hallowed Kinnick Stadium, I discovered that a rather rudimentary and perhaps impolite (or potty mouth), yet passionate (sorry Nancy) branding technique, is alive and kicking in Iowa City. I also learned what now appears to go hand-in-hand (or, perhaps leg-in-hands as opposed to a single hand) with Hawkeye football games, at least those played on their home turf:

Somehow the static sign doesn’t do justice to the in-person-experience, so try the YouTube video.

Once again, I’m reminded of Anthony Shore’s succinct naming insight:

There was a time when a simple, honest name was good enough.

Anthony, it appears those times are alive and well (or at least kicking) in the middle of the heartland.

Having said that, I’m also reminded of Liz Goodgold’s caution over "Potty Mouth Marketing: Six Reasons Why Vulgar Language is the Curse of Your Brand".

Trademark Office insights below the jump.

Continue Reading Primitive & Impolite, But Non-Vulgar Trademark & Naming Technique?

A couple of days ago, I promised to try and make the case for why the State of Minnesota ought to hire an experienced trademark attorney.

OK, so I’m a day late, but you can decide if I’m a dollar short too. By the way, it was the federal trademark registration record for the below mark that got me thinking about the need:

As it turns out, the State of Minnesota uses the Minnesota Attorney General’s Office to register various trademarks owned by various Minnesota State entities, including the Minnesota State Agricultural Society, owner of the federal service mark registration for the above MINNESOTA STATE FAIR service mark.

One little problem with the federally-registered mark. The prosecution history for the registration discloses that the assigned Examining Attorney at the United States Patent and Trademark Office (PTO) required a disclaimer of the descriptive wording "Minnesota State Fair":

Applicant must disclaim the descriptive wording “MINNESOTA STATE FAIR” apart from the mark as shown because it merely describes the feature of the identified services. Trademark Act Section 6, 15 U.S.C. §1056; TMEP §§1213 and 1213.03(a).

The Office can require an applicant to disclaim exclusive rights to an unregistrable part of a mark, rather than refuse registration of the entire mark. Trademark Act Section 6(a), 15 U.S.C. §1056(a). Under Trademark Act Section 2(e), 15 U.S.C. §1052(e), the Office can refuse registration of the entire mark where it is determined that the entire mark is merely descriptive, deceptively misdescriptive, or primarily geographically descriptive of the goods. Thus, the Office may require the disclaimer of a portion of a mark which, when used in connection with the goods or services, is merely descriptive, deceptively misdescriptive, primarily geographically descriptive, or otherwise unregistrable (e.g., generic). TMEP §1213.03(a). If an applicant does not comply with a disclaimer requirement, the Office may refuse registration of the entire mark. TMEP §1213.01(b).

A “disclaimer” is thus a written statement that an applicant adds to the application record that states that applicant does not have exclusive rights, separate and apart from the entire mark, to particular wording and/or to a design aspect. The appearance of the applied-for mark does not change.

The computerized printing format for the Office’s Trademark Official Gazette requires a standardized format for a disclaimer. TMEP §1213.08(a)(i). The following is the standard format used by the Office:

No claim is made to the exclusive right to use “MINNESOTA STATE FAIR” apart from the mark as shown.

See In re Owatonna Tool Co., 231 USPQ 493 (Comm’r Pats. 1983).

PTO Examining Attorneys will have a tendency to do that, and the Attorney General’s Office respectfully complied with the well-supported request. What the PTO’s Examining Attorney didn’t volunteer (and they can have a tendency to do that too) — even to the Minnesota Attorney General’s Office — is that a registration disclaimer could have been avoided by submitting a declaration claiming acquired distinctiveness in those words, which, according to the application, have been in use in that specific format since at least as early as January 1, 1981. 

Moreover, Wikipedia reports that the Minnesota State Fair has been in existence since 1859 (missing only five years during that entire period of time), so exclusive rights in the words "Minnesota State Fair" easily could have been claimed under Section 2(f) of the Lanham Act, by way of acquired distinctiveness, long before the current stylized use in 1981.

As it currently stands, there are no federally-registered rights in the words "Minnesota State Fair," only the specific graphic depiction and artwork set forth above (without any limitations as to color) is covered by a federal registration, with exclusive rights in the words having been specifically disclaimed.

Had a simple declaration been put in the record during prosecution to support that the words "Minnesota State Fair" have been in "continuous" and "substantially exclusive" use for at least the five years immediately preceeding the claim of acquired distinctiveness, the registration obtained also could carry the benefit of constituting prima facie evidence of the validity and registrant’s exclusive rights in the entire mark, including the words. Moreover, upon incontestability, these federally-registered rights eventually could become conclusive, not just prima facie valid.

So, the point of the story is not to pick on the Attorney General’s Office of the State of Minnesota, whose attorneys have far better things to do than worry about all the many nuances of federal trademark law. Besides, the point is, this kind of thing happens all the time, even in the commercial business world, when trademark registration and prosecution activities are conducted by those who don’t do it day in and day out.

As a trademark type, something struck me as odd about the Best Buy logo image appearing on the brand new outdoor baseball scoreboard at Target Field, during the Minnesota Twins recent home opener against the Boston Red Sox, so I captured a photograph to discuss it here on DuetsBlog.

What caught my eye was the curious placement of the ® federal registration symbol. Its positioning adjacent to the words "Best Buy" appeared to convey that the words "Best Buy" must be distinctive and federally registered, separate and apart from the hang tag logo, and I knew better, or at least, I thought I did, as I’ll explain.

After all, I knew a few things for sure, things that should counsel against placing the ® registration symbol next to the words "Best Buy":

  1. Use of the federal ® registration symbol adjacent to matter not federally registered is a misuse of the federal registration notice which may result in serious repercussions such as false advertising liability, and/or a finding of "unclean hands," if there is an intent to deceive people into believing unregistered matter is, in fact, registered as a trademark; 
  2. Some twenty years ago in Best Buy Warehouse v. Best Buy Co., Inc., 751 F.Supp. 824 (W.D. Mo. 1989), "Best Buy" was buried in the trademark graveyard, when then Chief Judge Scott O. Wright held "that ‘best buy’ is a generic term not capable of receiving trademark protection";
  3. A generic term is the antithesis of a trademark. It can never function as a trademark to identify and distinguish the products or services of only one seller;
  4. Generic terms and trademarks are mutually exclusive concepts under the law. Generic terms are not subject to appropriation and they are ineligible for registration or protection;
  5. Generic terms are part of the "public domain" or "linguistic commons," they cannot be owned and they are free for all to use without risk of infringement or dilution liability;
  6. Best Buy actually asked for it, so to speak, because the genericness ruling was sought by Best Buy to short-circuit a trademark infringement case brought against Best Buy for its use of "Best Buy Co." and "Best Buy Superstore" in Kansas City, Missouri, by an earlier retailer of office furniture also operating in Kansas City, under the names "Best Buy Warehouse," "Best Buy Office Furniture," and "Best Buy Office Warehouse"; 
  7. In support of its successful genericness defense, among other evidence showing that "best buy" is nothing more than sales "puffing" in the area of retail sales, Best Buy had engaged an expert witness who testified that the term "best buy" is generic when used in association with the sale of goods to the general public;
  8. Best Buy’s silver-bullet style genericness defense resulted in the grant of summary judgment on all counts of Best Buy Warehouse’s complaint, including trademark infringement, false designation of origin, unfair competition, trademark dilution, and trademark disparagement;
  9. Former Chief Judge Scott O. Wright’s decision, finding "Best Buy" generic as a matter of law, and not the subject of trademark protection, was affirmed by the Eight Circuit Court of Appeals, and then the U.S. Supreme Court declined to hear any further appeal, so the genericness ruling became a final judgment; and 
  10. Each of these federal registrations containing "Best Buy" had expressly disclaimed exclusive rights in the words "Best Buy":

Mark Image  Mark Image

Mark Image  Mark Image 

 

Mark Image

As it turns out, however, what I didn’t know or appreciate is that Best Buy has been quietly working behind the scenes to undo the normally permanent implications of the genericness ruling by affirmatively seeking federal registration. I also didn’t know or appreciate until now that Best Buy convinced a Trademark Examining Attorney at the U.S. Patent and Trademark Office to approve for publication "BEST BUY," just the words, in standard character, without any design or style limitations. And, since no one opposed, a federal registration for BEST BUY issued about two years ago. As such, at least for the time being, there is no misuse of the registration notice symbol appearing in close proximity to the words BEST BUY. 

This may very well be the first time in American trademark history, where a party has avoided trademark infringement liability by winning its genericness defense and then later obtained a federal trademark registration for the very words it had previously convinced a federal district judge were generic and incapable of any protection.

Apparently recognizing the gravity of the change in position, Best Buy’s 2007 trademark registration application was not the garden variety type, but instead, it included a variety of atypical materials, including testimony from Best Buy’s Senior Vice President, Marketing Communications and Business Operations, testimony from a survey expert, and perhaps most significantly, a thirty-one page legal brief detailing and arguing Best Buy’s current position on the subject, including these highlights:

  • BEST BUY is not generic;
  • BEST BUY is descriptive;
  • BEST BUY has acquired distinctiveness;
  • Judicial estoppel should not be applied;
  • Best Buy’s different positions are not clearly inconsistent;
  • Collateral estoppel should not be applied;
  • The de facto secondary meaning doctrine should not prevent registration; and
  • Even if once generic, the Singer doctrine permits protection of BEST BUY as a trademark.

Needless to say, Best Buy’s submission makes very interesting reading, and next week, I’ll explore it in more detail. In the meantime, I wonder what Best Buy Office Furniture thinks about it?

More importantly, what do you think? 

Should the BEST BUY registration survive litigation scrutiny?

Should it matter who might challenge the registration down the road?

Putting aside, for now, the unsettled question of who currently owns the iPad trademark, and Dan’s perspective on Apple’s trademark clearance strategies, from last week, look at what our finely-tuned e-mail spam filter just snagged:

It is a similar story to my previous Free Dell XPS Laptop Spam Scam? blog post from last December. Here, however, the Apple, iPad, and the (possible) iPad configuration trademarks, are the newest form of brand bait for what appears to be an ongoing type of spam e-mail scam. They’re fast. It only took about two weeks after Apple’s announcement of the iPad for these folks to bait their electronic hook with the newest branding lure.

By the way, how is it that these folks can make the free offer before Apple’s iPad tablet is even available to the public? As of today, Apple still has a notify me page, if you’d like to "be among the first to receive iPad." So, doesn’t the present unavailability of the iPad add to the misleading nature of the above advertisement because it seeks "testers" for this "new" product?

What do you think, misleading advertising, fair use of Apple’s intellectual property?

This story also appears related to the topic covered in my previous Is Wal-Mart Giving Away Free $1,000 Gift Cards? blog post too.

What do these unsolicited e-mail programs have in common? Well, besides the fact that they all appear to originate from Canada (for reasons unknown to me), they use well-known, if not famous brands to attract attention online and convince you to supply them with your e-mail address. Really, would anyone pay even an ounce of attention to any of these e-mail spam solicitations without the unauthorized use of these popular brand names and images?

In an apparent attempt to avoid misleading anyone and confusion, of course, as was the case with the Free Dell XPS offer and the Wal-Mart $1,000 Gift Card offer, the Apple iPad ad offers a purported disclaimer:

The advertisers in this email are not affiliated with any of the above brands.

This is a third party advertisement sent to you by the list owner. If you no longer wish to receive email from this advertiser, please write Reward Group 191 7 West 4th Avenue, Suite 279 Vancouver, B.C. VJ6-1M7 or visit our email removal site by click here.

If you do not wish to receive correspondence from the list manager you will need to follow the unsubscribe instructions provide by the list manager on how to remove you from their list.

Who are the advertisers? Who is the list owner? It says the advertisers are not affiliated with any of the brands, so does that mean the list owner is? Does this disclaimer do the job with claims relating to likelihood of confusion as to source, affiliation, sponsorship, and approval?

Even in the unlikely event it does, what about claims for initial interest confusion? Where is the disclaimer for that additional type of unlawful trademark confusion? And, since there is a reasonable claim of trademark fame for many of these brands, is it even possible to have a disclaimer that avoids a state or federal dilution claim concerning a famous mark?