Over the weekend, IPBiz reported that WWE (World Wrestling Entertainment) has filed an application to register 3:16 as a trademark for clothing items.

A Google search confirms that 3:16 has religious significance as it is a common truncation that signifies one of the most widely quoted verses from the Bible, namely, John 3:16.

Despite

When we mention confusion on DuetsBlog, we’re typically referring to the well-known likelihood of confusion test of trademark infringement. But today, we’re focused on the apparent confusion many have about the important question of: When copyright protection comes into being. If you ever have wondered whether something is or has been “copyrighted,” this

The newest fare at the Minnesota State Fair is not Camel-on-a-Stick, Buffalo-on-a-Stick, or any other kind of Food-on-a-Stick, but rather, Trademark-on-a-Stick.

Earlier this week, the Minnesota State Fair (owned and operated by the Minnesota State Agricultural Society, a Minnesota State Agency) was hot to skewer the unauthorized use of its nearly three-decade-old and more recently trademarked logo, by incumbent Republican U.S. Congresswoman Michele Bachmann, in a political ad targeting DFL challenger Tarryl Clark’s record on tax policy.

This trademark objection has generated quite a bit of publicity, with coverage being reporting by MinnPost, The Minnesota Independent, the New York Times (blog), Politics Daily, MPR News, TPM, and Politico. The Bachmann ad referenced the MN State Fair and used its official logo while suggesting that Clark has voted to increase taxes on what foodies covet at the fair, including their favorite corn dogs, deep fried bacon, and beer.

Central in the debate over the lawfulness of the Bachmann campaign’s use of the logo is a question we have pondered on DuetsBlog before (e.g., here, here, and here), namely, whether the use of another’s logo crosses the legal line and is likely to cause confusion as to sponsorship, affiliation, approval, or endorsement, or whether it may constitute lawful nominative fair use. So, it should be no surprise to readers of DuetsBlog, that in the end, it is consumer understanding of the use in the ad that controls whether or not it is lawful.

The Minnesota State Fair’s objection certainly is not frivolous and is rooted in a common and traditional trademark concern over likelihood of confusion. Bachmann for Congress political ads begin with the statement: "I am Michele Bachmann and I approve this message." According to Minnesota State Fair officials, Bachmann’s use of the above Minnesota State Fair logo is likely to lead viewers to incorrectly believe that the Minnesota State Fair approves Congresswoman Bachmann’s message or has endorsed her campaign. What do you think, is that what viewers will believe?

Bachmann’s campaign denies that the logo use was unlawful, but without explaining why no confusion is likely and without specifically articulating what would likely be a nominative fair use defense, it voluntarily has decided to drop use of the official logo and instead opted to switch to a more "generic" image. Apparently what the campaign means by "generic" is not that it lacks the look of a trademark and/or logo, but rather is one not specifically used or owned by the Minnesota State Agricultural Society.

Bachmann for Congress’ revised television advertisement may be viewed here, showing no use of the trademarked official logo, but I’d hardly call the use "generic" — it remains a  logo use, even if it is a fake one that swaps fireworks for a ferris wheel, and alters the color scheme and typeface. Do you think that consumers will notice or recognize the fake logo as being fake or just believe it is an additional logo used by the MN State Fair that they haven’t seen before?

Interestingly, the change may not be enough to satisfy the MN State Fair. Apparently, it continues to have concerns about the revised Bachmann ad, and it has asked the Attorney General to look into the question of whether the change is sufficient to avoid confusion as to endorsement of the Bachmann campaign. Having said that, with only a few more days left before the close of the 2010 MN State Fair, one must wonder whether the campaign will move on and moot this lingering concern too, leaving the State Fair ads behind, as it continues to run new ads down the final stretch of the campaign.

Stay tuned, tomorrow I’ll attempt to make the case for why the State of Minnesota needs to hire an experienced trademark attorney.

Bonus political speech consideration below the jump:


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An interesting trademark case recently was filed in federal district court in Minnesota, Chevron Intellectual Property LLC et al v. MDW Equity Partners, LLC, a pdf copy of the complaint here.

As beleaguered BP‘s once valuable goodwill and reputation continues to flounder in the court of public opinion with the tragic gulf oil spill

by James Mahoney, Creative director/writer at Razor’s Edge Communications

Okay, so I’ve read a lot of whining and agita about how marketers continually drive trademark attorneys to distraction with un-trademarkable names. And how advertisers drive those same attorneys to that same distraction with potential trademark infringements.

It’s time to let you in on a dirty little secret: we don’t care about trademark stuff. At least not a lot of the time.

Now before you break out the smelling salts, or the torts (aren’t they little tasty cakes, by the way?) or something to stop your palpitating hearts, let me explain a little further.

For big stuff, like our own trademarks or ones we think will really get us into trouble if we violate, then we do pay attention and we do care. Ditto for new things we come up with that we think will have some durability. That’s a key distinction here, folks: things we think will have some durability. Relatively speaking, there aren’t many of them—product names, for example, deserve attention.

For everything else we do, we pretty much know that the Smithsonian isn’t going to be calling us to enshrine the original. We’re also pretty sure that most of the stuff we come up with will live slightly longer than a tsetse fly only if we’re lucky.

That’s why we’re so cavalier about trademarks. Other than observing the big-picture rules (most of the time), we hit the threshold of diminishing return on trademark-related effort very quickly. It’s just not that valuable a use of our time.


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