Suspended high above Chelsea Market in New York City are these eye-catching ads for OWYN:

That’s a new brand for me, I’m unsure how to pronounce it (Own, Owen or Oh Win), but OWYN apparently stands for Only What You Need — for dietary supplement protein products that “use nutritious, plant-based ingredients and leave out inflammatory animal products and allergens.”

Meanwhile, another kind of suspension has occured deep within the bowels of the USPTO, where the OWYN federal trademark application is presently suspended, because of a prior-filed pending intent-to-use application for EWYN, covering overlapping goods, including dietary supplements.

Fortunately for OWYN, it had filed an even earlier intent-to-use application for the spelled-out mark OWYN ONLY WHAT YOU NEED, beating the EWYN filing date by six months, giving OWYN the ability/leverage to file a Notice of Opposition against registration of the blocking EWYN application.

Actually though, had the OWYN application been filed when the earlier OWYN ONLY WHAT YOU NEED application was, the suspension and ITU log jam at the USPTO could have been avoided.

As it stands now, the OWYN application is suspended pending the outcome of the prior-filed EWYN application, which in turn is suspended pending the outcome of the opposition against it, which is suspended while the parties attempt to settle the conflict and discuss likelihood of confusion.

In the Opposition, OWYN contends there is likelihood of confusion between EWYN and OWYN ONLY WHAT YOU NEED, which is a bit dangerous to allege. If it loses that argument, it won’t be able to knock out the blocking EWYN application, making it difficult to then convincingly say there is no likelihood of confusion between the more similar OWYN and EWYN marks, for the same goods.

Working backwards, and as a practical matter, unless the parties are able to reach an agreement as to peaceful coexistence, the OWYN application likely will remain suspended unless and until the prior-filed EWYN application is knocked out of the way or otherwise abandoned.

This train of suspensions is a good reminder to file all pertinent intent-to-use applications sooner than later, once a bona fide intention exists to make commercial use of the mark in commerce.

It also illustrates how important intent-to-use application filing dates can be in determining priority, especially when there is a long period of time that elapses before actual use is made.

On a lighter and less technical note, and for any Lord of the Rings fans out there, do any of the marks in this discussion remind you of EOWYN (pronounced A-O-WIN)?

How, if at all, might you rely on the existence of EOWYN to argue either side of the likelihood of confusion argument between EWYN and OWYN?

There is only one Lord of the Ring, only one who can bend it to his will.  And he does not share power.  – Gandalf, Lord of the Rings

As we have posted about more than a few times on DuetsBlog over the years (like here and here), the OLYMPICS trademark and the Olympic Rings mark are highly enforced marks that uniquely bear special protection granted from Congress.  In order for a country to be eligible to host one of the Games, they must have a law providing heightened protections for use of these marks.   36 U.S.C. 220506 provides that only the US Olympic Committee (“USOC”) has the exclusive right to use ” the symbol of the International Olympic Committee, consisting of 5 interlocking rings”,  the word “Olympic”, and other Olympic- and Paralympic-related names and marks.  The USOC may file a civil action if the Olympic rings, the word Olympic or trademarks owned by the International Olympic Committee are used without their consent and for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition.  If you want to use OLYMPICS or the five interlocking rings on any product or in any promotional materials, the general advice is the reverse Nike slogan – “just DON’T do it” (well at least without getting consent).

But then came the epic mechanical failure during the Sochi Opening Ceremonies…with four rings and a snowflake/asterisk-like contraption that malfunctioned.  #SochiFail.

The failure was maybe only overshadowed by Costas’ gruesome eye infection, and amazingly not seen by Russians on their TVs since the Russian government spliced in images from a dress rehearsal during the local broadcast.

A meme was created…

And then there were t-shirts…

And then there was this brilliantly executed (but fake) ad for Audi, with the “asterisk” next to copy that says “when four rings is all you need.”

So does the use of this gaffe on products and in advertisement to promote products or services violate the USOC’s exclusive rights in the rings as described in 36 U.S.C. 220506?  Perhaps not.  The statute specifically describes the symbol as “consisting of five interlocking rings.”   Not two rings, not four rings, not five rings spaced apart from one another – five interlocking rings.  While courts have weighed in differently on trademark fair use for parodies, it is doubtful that this use confuses the consuming public into assuming source or sponsorship by the Olympics.    So it is possible that this could be one of the few instances of fair use for the “Olympic rings.”

What do you think about the Olympics’ unique rights in their mark over other brand owners?  Do you think those rights are fair?  Are there other marks that you think deserve similar protection?