Trademarked

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What do you think, is Overstock.com selling bling with the Fordless blue oval logo?

Enamel Turquoise with Blue Ovals Bangle Bracelet

As you may recall from my post back in September, Ford Motor Company is attempting to register the below shown non-verbal logo as a trademark for a variety of goods in Int’l Class 12:

Mark Image

And, as you may recall from Dan’s I See Blue Ovals post back in August, there are far more than a handful of blue oval logos out there besides this one:

 

The pending Fordless blue oval intent-to-use trademark application recently was examined by the U.S. Patent and Trademark Office (PTO), and on October 23, 2009, the PTO found no substantive bases for refusal, but instead it issued an initial refusal noting only a couple of purely procedural or technical deficiencies, concerning the wording in the lengthy description of goods and the need for Ford to submit a claim of ownership to some related registrations (here, here, and here).Continue Reading More On The Fordless Blue Oval

A couple of weeks ago I posted an Accountemps billboard advertisement that prominently features what appears to be a 3M Post-it brand removable adhesive note, and I asked whether it constitutes fair use, and whether 3M’s permission is necessary to run the advertisement, since 3M owns a federal trademark registration for the color "canary yellow" in connection with these notes.

As the comments to that post reveal, some recognize the billboard image as a 3M Post-it note, and believe permission should be required to run the ad, others were unaware that 3M has a trademark on the color canary yellow, others believe that yellow adhesive notes are generic, and several apparently believe that even if the billboard depicts a 3M canary yellow Post-it note, no permission should be required. In fact, several pointed out that yellow adhesive notes can be obtained from a variety of sources, raising the question of how close those shades of yellow are to 3M’s trademarked canary yellow?

So, just for you, I collected six different pads of yellow-colored adhesive notes and fixed them to a dark green background for a little follow-up quiz. Can you identify any "canary yellow" and name the sources of the six different yellow adhesive notes shown below (answers below the jump)?

Continue Reading Does Your Eye Spy A Canary?

The Minneapolis Star Tribune finally reported on the Who’s Your Patty? trademark infringement lawsuit filed in August by self-proclaimed "David" (Lion’s Tap) against "Goliath" (McDonald’s), here. Our previous coverage is here, here, and here.

The Star Tribune reports that McDonald’s has not yet answered the complaint filed by Lion’s Tap. That’s true, but all that means is that Lion’s Tap filed, but has not yet formally served the complaint on McDonald’s. Had the complaint been formally served on McDonald’s, as the rules require before an obligation to answer arises, then McDonald’s would have twenty days in which to respond. So, the parties continue to negotiate for an amicable settlement. 

No doubt, "David" would prefer not to have to formally serve the complaint because that is when the federal court’s machinery starts to turn and more significant money begins to be spent in pursuing the case. Of course, Lion’s Tap will need to formally serve the complaint on McDonald’s within 120 days of filing the complaint or risk the suit being dismissed, so, just before year end. We previously have discussed the strategy of filing, but not immediately serving federal court complaints, here.

The Star Tribune story also reports: "The Lion’s Tap says it has been using the phrase for at least four years and has had it trademarked in Minnesota. It also has a federal trademark application submitted." The use of past tense "had" appears to repeat the same incorrect fact that most of the media ran with when the story originally broke, namely, that Lion’s Tap had registered Who’s Your Patty? as a trademark slogan before McDonald’s began use of the same slogan, implying McDonald’s knowingly "stole" something of Lion’s Tap.

As you may recall, we already pointed out how nearly all the media outlets got this critical fact wrong, as Lion’s Tap did not register until ten days before it filed suit against McDonald’s, and well after McDonald’s posted billboards bearing the slogan. All the Hamburglar references don’t stick to McDonald’s if it knew nothing about Lion’s Tap’s discrete prior use of the Who’s Your Patty? slogan, an entirely plausible scenario, as we have already discussed, here.

Most interesting, at least to me, are the scores of reader comments to the Star Tribune story, here.

For the time being, they reveal that, for just about every enthusiastic Lion’s Tap fan who loves to support the small fry and is cheering on "David" there is a pretty harsh critic of Lion’s Tap, some even taking pot shots at the quality of its food. Indeed, it appears a substantial number would endorse Jason Voiovich’s caution: "Here’s the problem, instead of coming off as the victim (which you could argue Lion’s Tap is), they come off as another coffee-in-the-crotch, show-me-the-money, lawsuit-happy opportunist." So, you might say that PR can cut both ways.

The comments also understandably reveal more confusion between Lion’s Tap and Lyon’s Pub than between David’s and Goliath’s respective uses of Who’s Your Patty?

Also, I learned from the comments about another reportedly great burger joint that appears to be worth the extra drive: Hopper’s Bar in Waconia. I’ll make sure to let you know how that goes. So, beware, PR efforts can unintentionally inform even loyal patrons of competitive alternatives too!

More on the legal claims, after the jump, in case you’re interested.Continue Reading Update: Who’s Your Patty? Lawsuit and Reverse Confusion

four tractors face forward

As you’ll see, I’m no equestrian (nor equine expert for that matter), but given the non-verbal logos shown above, are you able to tell what company operates a fleet of these semi tractor-trailers?

Does the color of the horse help? Horse breed? The direction it is facing? How about its pose?

Some possible considerations and the answer below the jump.Continue Reading Striking The Pose of Differentiation?

Thumbnail for version as of 15:21, 6 September 2009           Thumbnail for version as of 14:28, 28 October 2007  Thumbnail for version as of 05:55, 3 December 2007

More than a few trademark types cringe when their clients or others say things like “let’s trademark it,” “they didn’t trademark their logo,” or “we don’t want to trademark this name,” and, when they ask questions like “is it trademarked?” or “is that trademarked software?” or “did we ever trademark our logo?” or “should we be trademarking this packaging?”

Indeed, some have written: “’Trademark’ is not a verb. There is no such thing as ‘trademarking’ a word or phrase.” Similar views are expressed here, here, and here.

Perhaps any cringing may result from the fact that the Lanham Act — the federal trademark statute — defines the word “trademark” as a noun, not a verb or adjective:

The term “trademark” includes any word, name, symbol, or device, or any combination thereof —

(1) used by a person, or

(2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter,

to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.

Section 45 of Lanham Act, 15 U.S.C. 1127.

Turns out though, the words “trademark,” “trademarked,” and “trademarking,” are recognized words with established verb meanings that have formed part of the English language: “(1) To label (a product) with proprietary identification; and (2) to register (something) as a trademark.” Moreover, the word “trademarked” has an established adjective meaning too: “labeled with proprietary (and legally registered) identification guaranteeing exclusive use; ‘trademarked goods’“.

From my perspective, there is no need for cringing or even correction, just further inquiry into how the words “trademark,” “trademarked,” and “trademarking” are being used.Continue Reading What Does “Trademarked” Mean to You?