Does Sanas Health Practice Ltd. (“Sanas Health”) think that Daenerys or Sansa will win at the end of the wildly popular Game Of Thrones series and ultimately sit on the Iron Throne?  Sanas Health filed two applications for the mark “QUEEN OF THRONES” with the United States Patent and Trademark Office (“USPTO”). Interestingly, the Applicant’s name Sanas is extremely similar to the Game of Thrones show leading character Sansa Stark. This may be merely a coincidence but could be argued to enhance confusion between the GAME OF THRONES® marks and the applied for “QUEEN OF THRONES” mark.

I guess there could even be those out there that think Cersei will not die in the final season (not me) and instead will end up on the Iron Throne at the end of the series. But, I am thinking most people agree with me that she will not survive (and will likely be killed by one of her brothers – my bet is on Jaimie).

Not surprisingly, Home Box Office (“HBO”) believes that Sanas Health is trying to capitalize on the goodwill of its famous GAME OF THRONES® mark and brand; and thereby, diluting its distinctive and famous GAME OF THRONES® marks. HBO further believes that the “QUEEN OF THRONES” mark is confusingly similar with its marks. Accordingly, HBO has filed a Notice of Opposition against these applications (No. 91246195).

By way of background, HBO has thirty-one (31) registrations and applications for GAME OF THRONES marks (including design marks and GAME OF THRONES with additional words such as GAME OF THRONES CONQUEST®, GAME OF THRONES THE THREE-EYED RAVEN®, GAME OF THRONES ASCENT®, and GAME OF THRONES BEYOND THE WALL) in connection with various goods and services.

Sanas Health applied for its “QUEEN OF THRONES” mark in connection with:

  • “Castor oil for medical purposes,” IC 5 (Ser. No. 87/839,043); and
  • “Nutrition counseling; Dietary and nutritional guidance; Providing a website featuring information about health, wellness and nutrition; Providing information about dietary supplements and nutrition,” IC 44  (Ser. No. 87/922,698).

This is not HBO’s first time seeking to protect its marks related to the Game Of Thrones series and brands. HBO has three (3) trademark registrations and an application for WINTER IS COMING®, which is the House of Stark-centric premiere episode of the Game of Thrones series. The Purple Wine Company attempted to register the “WINTER IS COMING” mark in connection with wines. HBO opposed the application and the Purple Wine Company failed to respond. The mark is now abandoned.

The Examining Attorney found the recent application for “WINTER IS COMING” filed by Chen Yufang to be confusingly similar with HBO’s WINTER IS COMING® marks and issued an Office Action preventing registration. We will have to see if Mr. Yufang serves a response to this Office Action or abandons the application. If he does not abandon the Application and is able to overcome the Office Action, I would anticipate that HBO would file a Notice of Opposition against his application for the famous “WINTER IS COMING” mark.

Fans of the Game of Thrones series are aware of the fanciful word “Dracarys” as a command to Daenerys’ the fire breathing dragons. HBO opposed an application filed by Hangzhou Wanry Imp. & Exp. Co., Ltd.  (“Hangzhou”) to register the “DRACARYS” mark in connection with numerous automobile related accessories. HBO opposed the application and Hangzhou failed to respond. The mark is now abandoned.

Fan favorite Tyrion Lannister proclaimed, “That’s what I do. I drink and I know Things” in season six of Game of Thrones, and HBO’s official trailer for the sixth season included this saying. When Francis Collins from Florida tried to register this mark in connection with t-shirts, HBO relied upon its common law rights associated with its sale of t-shirts having the “That’s what I do. I drink and I know Things” mark to oppose the Application. Ms. Collins defaulted and her application for the mark is now abandoned and dead.

DuetsBlog has featured other posts related to the famous show and its brand, including Martha’s post here, and mine here.

The wait is almost over.  The final six episodes of Game of Thrones start on April 14.  We will have to see if there is a King or Queen who ends up on the Iron Throne and what happens to the “QUEEN OF THRONES” applications.

The HBO show “Game of Thrones” is a popular show for nerds and non-nerds alike.  And if you also happen to be a beer nerd, Brewery Ommegang has been making  a series of Game of Thrones-inspired beers in a collaboration with HBO.   This is just another example of a trend of breweries, wineries, and distilleries partnering with movies, television shows, and celebrity status for co-branding opportunities.  We saw similar partnerships with wine and Fifty Shades of Gray, and certainly there’s a plethora of celebrity-owned wines, beers, and liquors.  It’s seemingly worked out well for Ommegang since they’re on to their fifth collaboration with HBO and apparently the beers consistently sell out.

 

ommegang beer

In this episode of the brewing series, Ommegang is selling a THREE-EYED RAVEN dark saison ale, named after the mysterious, recurring bird that has often appeared in Bran’s dreams.  HBO filed an intent-to-use based trademark application for the THREE-EYED RAVEN mark for, among other goods, “alcoholic beverages, namely, beer, ale, lager, stout, porter and shandy.”

After being published for opposition, HBO’s application was recently opposed by Franciscan Vineyards, Inc. over its RAVENSWOOD brand based on a likelihood of confusion between its marks and THREE-EYED RAVEN.  They also own a registration for RAVENS based on the separation of the mark on the bottle.  In addition, they argue similarities based on their logo featuring three ravens in a circle (incidentally having three eyes total).

RavenswoodLabel

 

Franciscan Vineyards, Inc. may be hedging its bets on the impact of the BLACKHAWK decision by the TTAB, which maintained a refusal to register BLACKHAWK on wine in view of a BLACK HAWK STOUT on beer citing the similarities of the marks and the relatedness of the goods.  Marks must be considered in their entireties when analyzing the marks for a likelihood of confusion.  In the BLACKHAWK decision, the applied-for mark was wholly incorporated into the registrant’s BLACK HAWK STOUT mark.  Had the owner filed for BLACKHAWK WINERY instead, the result may have been different.

In this case with HBO, the applied-for mark THREE-EYED RAVEN is not so similar to the registered marks as in the BLACKHAWK case.  It is not wholly incorporated into the registrant’s mark and the two arguably create different commercial impressions.  The sticking point, however, is the Trademark Office’s persistent application of its recent conclusory position that wine is related to beer is related to any distilled spirit.

Who do you think is going to win this one?  And, as these liquor battles proliferate within the Trademark Office, should the bar be heightened for companies to establish relatedness of its wine/beer/spirits to the applicant’s product in order to act against them?

And, if you don’t want to opine substantively, who would you like to see collaborate with a brewery, winery, or distillery like HBO has here?  I could easily be persuaded to buy a Transformers line of beer, some Scandal wine, or a Boondock Saints Irish whisky.

In the wake of Jon Stewart and Stephen Colbert leaving their respective shows on Comedy Central for newer pastures, John Oliver has emerged as a new beacon of political humor and satire.  If you haven’t watched his show, and especially if you considered the former two as having an obvious political slant, you should check out Last Week Tonight on HBO.  His shots get fired everywhere.

On this week’s, John Oliver took a shot at the patent system, particularly patent trolls:

I don’t know who looks worse out of Oliver’s segment – trolls or trial lawyers.  Or maybe Mark Cuban since he never seems to ask about patents.  Until this segment, I didn’t take note of how often Shark Tank uses the lack of a patent as a reason for rejecting a business idea, but I digress.

As Oliver’s comments make clear, there certainly is room for improvement to correct the litigation flaws created by so-called “patent trolls” – a hotly discussed topic lately in many business, law offices, blogs, and legislatures.

Much of the discussion of the “patent troll” surrounds how exactly a “patent troll” is defined.  Some refer to patent trolls as “non-practicing entities,” and others to “patent assertion entities.”  These sound in the media like lazy, menacing, evil, money-grubbing corporate shells waiting for their crossing fee from under the bridge – and surely there are some of those.  But that “patent troll” definition can also appear as an independent inventor who doesn’t make, use, or sell his invention.  Maybe that inventor’s idea was stolen by another company that now makes, uses, or sells it.  Before filing a lawsuit, he may set up a corporate entity to hold the asset to help protect him from personal liability or fund the litigation.  Patent litigation is expensive and shouldn’t that right be afforded to everyone?  Otherwise wouldn’t the Apples and the Samsungs be the only ones skating in the rocket docket of Marshall, TX?  We need to think very carefully about how we define “patent troll” before we try to make it unjustly hard for so-called trolls to litigate.

The major “troll” examples identified in Oliver’s segment – a patent that underlies the technology in every Android app and patents for copying – are technology that has become so woven in the fabric of our everyday lives that targeting people for making, using and selling a patented invention seems to the general public as utterly ludicrous.  And I don’t blame them.  In the trademark realm, we don’t allow the enforcement of trademark rights where the mark has become generic and therefore lacking in its ability to identify source.  Aside from defenses of laches or prosecution history estoppel, patent law doesn’t have a similar provision that protects such generally known ways of doing something from being asserted against others for making, using or selling the patented product.  But does it need something like the concept of genericide?

One way of resolving the issue may be to take from the model of trademark law – the Declaration of Use filed at the 6th anniversary of registration and then with the renewal every 10 years after the registration date.   This Declaration of Use requires a statement that use is continuing and providing a specimen showing use (and of course, a fee).  Patent law has maintenance payments that are required only for utility patents at 3.5 years, 7.5 years, and 11.5 years from grant of the patent.  But aside from payment of the fee, nothing else is required.  Maybe instead of a declaration of use, it may need a declaration of relevancy – and maybe that relevancy term is dependent upon the industry.

The patent law currently provides a 20-year term of an exclusive right to make, use, or sell the patented invention, in exchange for an enabling public disclosure of the invention to the public.  The whole purpose behind the system is for the public to gain possession of an inventive idea and replicate it or re-purpose it.  But 20 years in some industries, like the rapidly advancing software industry, may be too long of a term of protection.  Maybe we need shorter terms for software patents, much like we have a shortened term for design patents (14 years from issuance).

We must think very carefully about how we define “patent troll” and how we treat them.  We also need to find a delicate balance in avoiding seemingly frivolous lawsuits and protecting inventors’ rights.

How might Oliver treat the similar subject of trademark bullying?