Last Friday, the Supreme Court decided it will hear the Brunetti case, and take a closer look at Section 2(a) of the Lanham Act, the portion forbidding federal registration of trademarks having matter that is scandalous or immoral.

So, it appears my big prediction for 2019 is pointing in the affirmative direction:

“In terms of my big trademark prediction for 2019, it will be revealed whether the scandalous bar to federal registration is invalidated, whether or not the Supreme Court agrees to hear Brunetti.”

Now that the Court has decided to review Brunetti, it will be the one to decide whether the “scandalous” and “immoral” bars to registration violate the First Amendment, not the Court of Appeals for the Federal Circuit.

So, perhaps Chief Justice John Roberts was foreshadowing a review of Brunetti, when he was speaking in Minneapolis, and said: “Obviously, if any court finds an Act of Congress unconstitutional, we will take it . . . .

To piggyback on what I wrote back in October:

“There are plenty of good reasons for the Court to decide the constitutionality of the “scandalous” and “immoral” language, separate and apart from the disparagement language found to violate the First Amendment in Tam (here, here, here, here, here, and here).”

“If the Court does hear Brunetti, let’s hope Section 7 of the Lanham Act — the provision expressly noting that federal registrations are issued ‘in the name of the United States of America‘ — won’t be some uninteresting and ignored ‘nuance’ of trademark law to the justices.”

You may recall, I previously said this about the Federal Circuit’s overreach in Brunetti:

“What is striking about the CAFC ruling is its breadth. It isn’t guided by the Supreme Court’s Tam decision — requiring viewpoint discrimination — as the Tam Court found with disparagement.”

“The CAFC did not decide whether the ‘scandalous and immoral’ clause constitutes impermissible viewpoint discrimination, instead it seized on mere content as lower hanging fruit for invalidation.”

“The problem with focusing on content alone is that it proves too much. Trademarks, by definition, are made up of content, and many other provisions of federal law limit the right to register based on content, so, if this analysis holds, what additional previously-thought-well-settled provisions of federal trademark law will fall? Importantly, some even allow for injunctive relief: tarnishment.”

I’m thinking the Court will decide that the Federal Circuit went too far in Brunetti, and it will find a way to retain the “scandalous” bar to federal registration, though I’m doubting the “immoral” bar will survive, so stay tuned.

What are your predictions dear readers?

If you’ve paid attention to any billboards in the Twin Cities over the last year or so, you’re probably wondering why I haven’t discussed this one yet, knowing my passion for billboard ads:

The Kris Lindahl billboard ads — especially this one —  are hard to ignore. They are almost as ubiquitous as a certain iPhone Xs ad. Plus, this one strikes a pretty distinctive wingspan pose.

Apparently there is an art or science behind poses for real estate agents, but as far as I can tell from a Google search, none appear to cry out “wingspan” like Kris’ does, so is the pose ownable?

Seems pretty clear from how his name is used as a mark on this billboard that Mr. Lindahl’s eponymous Lindahl Realty firm is on the way to registering his personal name as a service mark.

While it isn’t always a cake walk, in obtaining federally-registered service mark rights in a personal name, what I’d really like to see Mr. Lindahl attempt next is registration of his wingspan pose.

What would you rate his chances, putting aside whether you like the above billboard ad or not?

When ideas from different realms converge in a single moment of time, a new blog post is born.

Catcalling” — albeit a rebranded, reimagined, or redefined version of it — recently has been front and center in a political Twitter storm and remains a lightning rod in the non-stop news cycle.

So, imagine my surprise also to see the sturdy Cat construction-oriented brand calling my fashion-forward daughter to select it for her brand new, back-to-school footwear look this coming Fall:

 

Photo credit: G. Baird

This isn’t our first rodeo with Cat footwear. We previously kicked heels with my son’s steel-toe boot choice, also covering the careful timing of Cat’s truncation from the four-syllable Caterpillar.

While the brand extension from construction and earth-moving equipment to boots makes perfect sense, especially the steel-toe variety, here is the explanation for women’s casual dress shoes:

Photo credit: G. Baird

Marketers, the extension seems unnatural and forced to me, but I’d love to hear from our readers who have a stronger vantage point on whether this brand extension will work long term for Cat.

What called me to create this story for you is the hidden trademark strategy to be unearthed.

“Footwear” is one of those broad descriptions of goods that the USPTO will accept as sufficiently precise. Selecting it facilitates and better positions your brand for line extensions yet to come.

In other words, narrowly selecting “slippers” or “steel-toe boots” over “footwear,” in trademark filings may leave you boxed in when seeking to expand or extend the lines of your present brand.

Not sure when Caterpillar first introduced women’s casual dress shoes under the Cat brand, but it has owned federally-registered rights in the word CAT for “footwear” for more than a decade.

Caterpillar likely began using CAT with steel-toe boots, but given its broader registered rights, I’m guessing it didn’t lose much sleep wondering if it could grow into those broader registered rights.

In fact, this Cat has become quite active enforcing its broader rights at the USPTO’s TTAB, here.

My first post on this blog, nearly two years ago, was about a trademark dispute between the State of Michigan, and a Michigan company, M22, LLC.  M22 sells a variety of merchandise bearing an “M22” mark that appears similar to the route marker signs on Michigan Highway M-22, see photos below.

U.S. Registration No. 3992159

Posted to Flickr by Larry Page. License: CC BY 2.0.

M22 was granted several federal trademark registrations, including an “M22” word mark and several M22 design marks. The dispute escalated began back in 2013, when Michigan filed a petition for cancellation at the Trademark Trial and Appeal Board (TTAB) on several grounds, including that the registration violates federal regulations related to the Manual on Uniform Traffic Control Devices (MUTDC) (among several other grounds which are now less relevant). In August 2016, the TTAB denied Michigan’s motion for summary judgment.

Shortly after the TTAB denied summary judgment, Michigan turned to a different venue, filing a lawsuit in Michigan state court (ultimately resulting in suspension of the TTAB proceeding), against M22 seeking declaratory relief. M22 quickly removed the case to federal court. In its complaint, Michigan alleged that trademark protection for the M22 design in Michigan’s M-22 route marker signs is prohibited based on Federal Highway Administration standards under MUTCD, which provide that any road signage designs (“traffic control devices”) required on federally funded highways, including the M-22 signs, are in the public domain and shall not be protected by patent, trademark, or copyright.

However, last year, the federal court issued an opinion in favor of M22, dismissing the case for lack of jurisdiction. The court held that it lacked jurisdiction over Michigan’s claim for declaratory relief. Furthermore, the court held that Michigan lacked standing as there was no concrete injury alleged. Michigan’s main argument as to concrete injury was that Michigan risks losing federal highway funding if it does not comply with and enforce state and federal laws and regulations, including the MUTCD. The court disagreed, determining Michigan had not alleged facts showing how the registration of M22’s marks would prevent Michigan from complying with the MUTCD, that there was any risk of losing federal funding, or that Michigan has any power to enforce the MUTCD against private third parties.

But Michigan still didn’t give up after losing the federal court ruling. The case was remanded back to state court, where extensive motion practice ensued. The state court ultimately concluded that: (1) Michigan has standing; (2) the MUTCD has the force and effect of Michigan law; (3) M22 LLC is subject to Michigan law; and (4) the M-22 highway sign is a traffic control device under the MUTCD. However, the court declined to determine whether M22’s trademark registrations and use were unlawful under the MUTCD (as Michigan argued), and held the TTAB may lift its stay.

So now the dispute is right back where it started over five years ago, in the trademark cancellation proceeding at the TTAB.  The TTAB lifted its stay last year, and recently granted an extension of discovery to allow M22 to take a deposition of a designee for Michigan. Most recently–just yesterday in fact–Michigan moved again for leave to file a partial summary judgment motion, on Michigan’s claim that M22’s registration should be cancelled for unlawful use in commerce, based on violations of the MUTCD standards. However, the Board had already ruled twice that Michigan was prohibited from filing further motions for summary judgment. Today, M22 filed a request for a telephone conference with the Interlocutory Attorney, stating that briefing on Michigan’s third motion for summary judgment should be unnecessary based on the Board twice prohibiting such a motion.

This has been an interesting saga so far, and it’s fascinating that Michigan has been willing to invest so much time and money vigorously contesting this registration, when it is unclear (as it was to the Michigan federal court) whether there is a significant risk of any concrete injury to Michigan in allowing this mark to remain registered. How do you think this dispute will end up? Stay tuned for updates.

 

How much do I believe in federal registration of trademarks and brand names? Well, this much:

I’ve always been a big fan of practicing what you preach. Actually walking the talk. Not just talk.

That mindset helps explain why we stuck with the suggestive name of this blog, even after the experts recommended against it several times, for SEO and other reasons. They do agree now.

Anyway, the registration issued in the nick of time, given my true fortune just two days earlier:

Seriously though, obtaining federal registration of a personal brand name can be a bit challenging.

A common refusal when personal names are involved is that they merely identify a person, and they fail to function as a mark, the very refusal the USPTO initially issued in my particular case:

“Registration is refused because the applied-for mark, as used on the specimen of record, is a personal name that identifies only the name of a specific individual; it does not function as a service mark to identify and distinguish applicant’s services from those of others and to indicate the source of applicant’s services.”

“In this case, the specimen shows the applied-for mark used only to identify the name of an individual and not as a service mark for applicant’s services because it is used to identify the author of blog posts, but does not separately indicate the source for any service. Applicant has applied for services including providing information in the field of law. The specimens shows the applied-for mark being used merely to name the author writing the posts, and to identify a particular individual and give information about him. The specimens include a short biography or “about the author” post with the name of the author or individual at the top, and several posts that show the applied-for mark included only as “By Steve Baird.” This shows the applied-for mark being used in a by-line, attributing authorship, but not identifying source. The applied-for mark is not used in association with the offering of any service in a way that would make it a service mark.”

Fortunately, I’m surrounded by really bright, passionate intellectual property and trademark attorneys, and in this case, our Tucker Chambers came to the rescue, with this winning response.

And, thankfully Tucker had some decent facts to work with, especially given kind commentary of some generous giants from both the legal and marketing fields, two of our core audiences.

Trust me, the irony has not escaped me, that one of these generous giants recently allowed the registration for his blog’s name to lapse, and the other giant likely prefers to Just TM It instead.

I’ve never professed to resemble a purple cow, but my mother and father did teach me to follow the beat of my own drum, after taking in a variety of different perspectives to settle on my beat.

So, if you have a personal brand name that truly functions beyond indentifcation to indicate the source of goods or services, my hope is that you will consider federal registration to help protect it.

Keep in mind, personal brands can go beyond an actual name to embody a non-verbal image too, where consent of the individual so identified is of record at the USPTO, hello Ralph Lauren:

Personal brands also may include nicknames, like Mr. Wonderful aka Kevin O’Leary from Shark Tank fame, who is seeking registration of Mr. Wonderful for roasted nuts, hello Wonderful:

 

So, I’m left thinking that Mr. Wonderful best get crackin’ on his anticipated response to the inevitable likelihood of confusion refusal that he’ll be experiencing in the not-to-distant future.

Tis’ the season for football, not just on the gridiron, but also at the U.S. Patent and Trademark Office. Shortly after the “Minneapolis Miracle,” as we reported this week, the Minnesota Vikings applied for registered marks on the phrase. And with the “big game” approaching, teams have titles on the mind–even those that aren’t in contention (ahem, Green Bay Packers).

Just one week ago, the Green Bay Packers initiated an opposition proceeding with the Trademark Trial and Appeal Board (the “TTAB”) against McClatchy U.S.A., a publishing company associated with the Fort Worth Star-Telegram. The dispute stems from the Star-Telegram‘s use of “Titletown, TX” as the title of a 20-short-video documentary series chronicling “the story of the 2016 Aledo [TX high school] Bearcats and their quest for a sixth state [football] title in eight years.”

Courtesy: PBS

The Packers have owned registered competing marks, such as “Titletown U.S.A.,” “Titletown,” and “Titletown Towel” since as early as 1993 (though, the Packers assert they have “made widespread and continuous use” of the marks since the 1960s). The Packers appear to have only begun policing the Titletown name at the TTAB since the start of this decade, however, filing five oppositions against related marks, such as “Title Town Talk Show” and “Titletown Brewing Co.”

The Titletown mark has acquired additional meaning and value to the Packers since the organization opened a development district by the same name outside Lambeau Field last year. The Packers invested almost $65M to complete the first phase of the district by this fall. The Titletown District includes a hotel, sports medicine clinic, ice skating rink, restaurant, and artificial tubing hill. And this summer, it got its own logo:

Courtesy: Twitter

The Packers allege that the “Titletown, TX” mark and use in the Texas video documentary series creates a likelihood of confusion and dilutes the “Titletown” and related marks. Why? Because the Star-Telegram uses the mark in connection with football. And that conflicts with the general public’s wide recognition of the mark “as being associated with a single source, and further recognizing the single source as [the Packers].” And the Packers allege that the Titletown name is distinctive with regard to entertainment, video, news, and commentary related to football such that it has acquired secondary meaning. Not only that, but the Packers consider the mark “famous and exclusively associated with [the Packers] in the mind of the consuming public.”

Setting aside the high likelihood that several fanbases and regions across the United States would likely dispute the Packers’ allegations as to fame and widespread recognition and acceptance, the primary questions before the TTAB are whether the use of the “Titletown, TX” mark in the short-video series is likely to cause confusion, mistake, and/or deception as to the source or origin of goods and services. And, further, whether use of the mark is likely to dilute the distinct quality of the Packers’ marks.

Generally, the strength of a mark depends on whether it is arbitrary or fanciful, suggestive, or descriptive. Because the Packers argue distinctiveness and secondary meaning, the organization appears to contend that the mark is descriptive (the lowest strength outside of generic), implying that the Packers are title winners. And historically, this is true; the Packers have been league champions a record 13 times (9 more than the nearest rival team, the Chicago Bears). And the Packers have won three consecutive NFL titles twice. Interestingly, though, the Aledo Bearcats have also won three consecutive state titles twice. This could set up a descriptive fair use defense for Star-Telegram.

When it comes to likelihood of confusion, the primary factors include: whether the use is related, the strength of the mark, proximity of the use, similarities of the marks, evidence of actual confusion, marketing channels employed, the degree of care likely to be exercised by consumers, the user’s intent in selecting the mark, and the likelihood of expansion of product/service lines. The Packers might have a case, but not a very strong one. Star-Telegram‘s use may be related to how the Packers use the Titletown mark in some contexts. But the Packers use the Titletown mark in multiple ways, only one of which relates to reporting about football. Indeed, the Packers are beginning to use the mark more in connection with the new Titletown District. Star-Telegram‘s use is in a very different market: Texas vs. primarily Wisconsin. The use relates to different football leagues: high school vs. the NFL. And the marketing channels are different: online newspaper vs. broadcasts. Ultimately, it seems unlikely that a typical consumer would confuse the two uses: think cheeseheads vs. longhorns.

When it comes to dilution, the primary inquiry is whether the use of a mark is likely to impair the mark’s distinctiveness or harm the reputation of the famous mark. The Packers allege that “[a] recent survey concluded the term TITLETOWN is known to virtually the entire population of consumers surveyed and a substantial majority of those who are aware of the term TITLETOWN, associate it specifically with the Green Bay Packers.” This may demonstrate distinctiveness. On the other hand, it is difficult to see how a short-video series on successful high school football teams in Texas would harm the Titletown mark’s distinctiveness as to the Packers and professional football or harm the reputation of the mark.

McClatchy has until February 26, 2017 to answer the Packers’s opposition. By then, there will be a new reigning NFL titleholder, much to the envy of the allegedly-undisputed Titletown team. But even more to the Packers’s envy, the new titletown (or place of the title game) will technically be Minneapolis.

Well, it was fun while it lasted. Some incredible moments last longer than others, and when the stars are all lined up, they can even translate into a movement. Yet, the blistering loss in Philly proved that our hope of being more than a host for Super Bowl LII, wasn’t meant to be.

Minnesota was seriously buzzing for the past week, following the incredible final-second touchdown score by Stefon Diggs, to launch the Vikings past the Saints, sending them to Philly to be favored as the likely NFC champion for Super Bowl LII. No more Dilly Dilly, Vikes couldn’t Bring it Home.

Sadly for the Minnesota Vikings and their fans across the country, the meaning of the Minnesota Miracle and Minneapolis Miracle phrases have been relegated to a brief moment in history — memorable no doubt, but memorable and meaningful for much less than most hoped for here.

Trademark filings reveal that the Minnesota Vikings hoped for more too, and likely hoped to cash in more too, within twenty-four hours of the infamous catch, the team sought to turn the meaning of Minnesota Miracle and Minneapolis Miracle into exclusive and proprietary trademark rights.

Team ownership filed a few used-based applications (here and here) and a pair of intent-to-use trademark and service mark applications (here and here) covering virtually every good/service known to men, women, and children, including the proverbial kitchen sink. Are you wondering how many of those items could withstand a challenge on the requisite bona fide intent? Let’s say I am.

It remains to be seen whether the USPTO will issue the increasingly common failure to function and informational refusals against the use-based applications.

It also remains to be seen whether the buzz around the Vikings several trademark applications concerning those phrases will last longer than our week of euphoria.

Perhaps even most interestingly, no one seems to be reporting about the apparent lack of alignment on who owns what surrounding the Minnesota Miracle and Minneapolis Miracle phrases, with quarterback Casey Keenum (a little slow on the draw) filing for both phrases as trademarks (two days after the Vikings did), and with Stefon Diggs apparently selling his own shirts, here:

We continue to have Super Bowl LII on our minds here in the Twin Cities. It’s hard to avoid thinking about the upcoming “Big Game” with ads like these blanketing our skyway maze:

Turns out, everyone wants to have a little piece of the action in this upcoming event, even without the formality and cost associated with sponsorship, some call it ambush marketing:

Ambush marketing is not necessarily unlawful. It’s tricky, but I’m guessing the above ad may have cleared a legal review. No obvious conflicts with federally-registered rights, it appears.

Having said that, does this little guy change your view on things? Look familiar? It appears to be the same Wilson NFL Pee Wee Touchdown football without the name brands shown:

I’m thinking the JB Hudson ad employed a little airbrush strategy, or at least some strategic and highly precise palm expansion and placement in hiding the Wilson and NFL logos.

Actually, if so, it’s a good move, but will it be enough — especially given this website link — to avoid the aggressive NFL Super Bowl sponsorship police?

Who owns rights in TOUCHDOWN for footballs, if anyone? Anyone?

Neither Wilson nor the NFL appear to own federally-registered rights in TOUCHDOWN for footballs, but do common law rights exist?

If so, who owns them, the NFL or the maker of the NFL’s official game footballs, Wilson?

Moreover, did legal review consider non-verbal marks? What about the stitching design bordering the football laces? Non-traditional trademark? Functional? If not functional, fair use?

So much to think about as we anxiously await the Big Game in our own chilly backyard . . . .

Last Friday was a big day for Erik Brunetti. He won his appeal at the CAFC, opening the door to federal trademark registration of his four-letter-word “fuct” clothing and fashion brand name.

The same door swung wide open for all other vulgar, scandalous, and immoral designations used as trademarks, because the 112-year old registration prohibition was found to violate free speech.

You may recall where I take a knee on the free speech argument as it relates to the government’s issuance of federal trademark registrations, see here, here, here, here, here, here, and here.

I’m continuing to believe Congress has the power under the Commerce Clause to distance itself from and not be viewed as endorsing certain subject matter on public policy grounds, especially when Certificates of Registration are issued “in the name of the United States of America.”

Having said that, I’m thinking the federal government has done a less than stellar job of articulating and advocating for this right, which may very well explain the current state of affairs.

What is striking about the CAFC ruling is its breadth. It isn’t guided by the Supreme Court’s Tam decision — requiring viewpoint discrimination — as the Tam Court found with disparagement.

The CAFC did not decide whether the “scandalous and immoral” clause constitutes impermissible viewpoint discrimination, instead it seized on mere content as lower hanging fruit for invalidation.

The problem with focusing on content alone is that it proves too much. Trademarks, by definition, are made up of content, and many other provisions of federal law limit the right to register based on content, so, if this analysis holds, what additional previously-thought-well-settled provisions of federal trademark law will fall? Importantly, some even allow for injunctive relief: tarnishment.

Asked before, but will dilution by tarnishment survive this kind of strict free speech scrutiny? According to the CAFC in Brunetti, strict scrutiny applies even without viewpoint discrimination.

All that leads me to explore with you Brunetti’s line of “fuct” clothing, and in particular, this t-shirt which is surprisingly for sale online, here.

We’ll see for how long it’s available online, or whether Mr. Brunetti will need to Go Further, to get another brand’s attention, hello, Ford:

It’s hard to imagine the famous Ford logo, consisting of the distinctive script and blue oval, not being considered sufficiently famous and worthy of protection against dilution — without a showing of likelihood of confusion. But, given Tam and Brunetti, is a dilution by tarnishment claim even viable, or is it just another federal trademark provision about to fall, in favor of free speech.

Just because Mr. Brunetti may be anointed with a federal registration for the word “fuct” doesn’t mean his depiction of the word in the above style and design is lawful for use or registration.

So, if Ford does pursue the Brunetti t-shirt, under a dilution by tarnishment theory, and if it were considered to be a viable claim, in the end, might Mr. Brunetti be the one, let’s say, uniquely suited — to vanquish tarnishment protection from the Lanham Act?

Or, will another potty-mouth brand be the one to seriously probe the constitutionality of dilution protection against tarnishment?

Last but not least, and sadly for me, last Friday also was a big day for Mr. Daniel Snyder too.

Ron, you’re so vain, you probably think this post is about you, don’t you, don’t you — actually, it is, or, let’s say, more about your recent in-actions — still, I hope you enjoy this cute little melody.

By the way, before fully discussing how you walk into a party or onto a yacht, do I detect a hint of apricot in the color of your stylish Likelihood of Confusion garb, might there be a matching scarf?

The week before last, walking through the Minneapolis skyway system, while reading our good friend Ron Coleman’s explanation of “why I let my trademark registration lapse,” I kid you not, a second and more physical spectacle emerged right before my eyes when crossing over 5th Street:

Ron, do I need to connect the dots for you on the striking parallels of the mysterious energy that you generated when you gave away the thing you (once) loved? Like the total eclipse of the sun?

Yes Ron, love you like my own brother, but if you were Dave, I’d help him back on the tracks, and remind him of what less than 12 cents a day buys, for those incontestable and powerful standard-character federally-registered rights over a second ten-year term. Remember, sword and shield.

The decisive inaction in allowing the lapse, reminds me of the forgotten and invisible value of deterrence. And, while I’m on board with much of the irreverent tone you can display from time to time, are you now suggesting that other brand owners turn their circle ®s upside down too?

I won’t put words in your mouth, but are you advocating for unilateral registration disarmament? Even if not, I’m left wondering, are the children or watchful brand owners likely to be confused?

After all, chalking up the original ten year old decision to federally-register your blog’s namesake as a senseless and unnecessary goof, today, because you haven’t (yet) found an occasion to enforce it, requires the omnipresent convergence of 20/20 hindsight and a flawless crystal ball for the future, all in one moment. Again, deterrence my friend, it’s beautiful and invisible.

And, as to the question of vanity, far be it for me to question yours, but isn’t tossing your circle ® in the trash, a little like saying to the world, “look mom, no hands,” after learning to ride a bike, and then daring unwise children, to knock you off? Pun and double-meaning, fully intended.

Now Ron, I know you relish a formidable challenge, like when you went (not to Saratoga), but to Washington, D.C., and your client (not horse), naturally won, the trademark case of the year. But, before leaving the question of vanity though, just wondering, after reading the favorable Tam decision, tell me, did you have one eye in the mirror, as you watched yourself gavotte?

Still Ron, don’t you think the modest investment of less than 12 cents a day is worth putting the USPTO in the position to, and give it, the statutory charge to do your enforcement bidding for you? Don’t you? Even if someone, as you seem to invite, tries something? Don’t you, don’t you?

And here’s an underworld spy question for you Ron, is there no room for the Easy Button, in your commercial litigator’s toolbox, just in case you need it, let’s say, down the road in a few?

Ron, please don’t look at me that way! When you have your hat strategically dipped below one eye, I’m left with the feeling you think I’m either still quite naïve, or full of it, nothing in between.

By the way, have you actually verified that your Likelihood of Confusion® registration never formed a bar to others at the USPTO? There are tools for that, courtesy of Towergate Software.

What we do know for certain is, it will no more, if it ever did. And, if you ever want to avoid the need for a formal opposition at some distant point in the future, if the USPTO doesn’t agree with your assessment that someone had their sights on messing with you, without your ®, you can kiss the Letter of Protest tool goodbye, as this little guy — ™ — doesn’t cut it.

Please let’s be honest Ron, it’s always easier to hang on to something and hold it in your hands than discard it and try to get it back later. I realize you’re feeling confidence in letting it go in this moment, but what if the facts or your mind change down the road?

Dumpster diving is a messy proposition. What the USPTO granted yesterday doesn’t always come as easy, if at all, tomorrow or the next day. As we all know, the USPTO is not impervious to changing its mind on how it views certain things, especially when it comes to judging the line between trademark suggestiveness and descriptiveness.

Who am I to judge your calculation of value? But let’s not forget, Ron we’ve all seen your fancy Likelihood of Confusion branded apparel. By the way, will we see those fancy threads in Seattle? Or, are they about to become a collectors item on eBay?

Let me just say, had you presented your apricot hat in hand in Orlando, and passed it around the room, I’m thinking you’d have collected more than the price of another ten year term, given the enormous and generous contributions you’ve made to our guild over the last few decades.

Ron, don’t get me wrong, I fully realize that you’re where you should be all the time, and I completely admire your sensitivity to the evil constructs of vanity, but I fear that the little voice whispering in your ear has spilled some clouds in your coffee on this one. What about the children who may be watching? Aren’t you concerned about the implication of what you seem to be saying, simply just TM it instead?

Ron, having said all that, I hope we can still be friends, as I have no doubt, there a plenty of others still dreaming that they’d be your partner:

Last, but not least, Ron, will you need reminding that yet another price of purging your vanity is that you’ll need to remove all those fancy trademark registration symbols from your blog?