From time to time, I post squirrelly thoughts. Today, I wonder: Should a large company with famous, distinct trademarks sometimes hold back from aggressively enforcing those trademarks, even when doing so might at first appear to be a useful competitive strategy? I’m sure many executives at McDonald’s–the worldwide fast-food chain that it is so ubiquitous The Economist uses the prices of the Big Mac to measure purchasing power parity throughout the world–are questioning some past enforcement decisions.

If you haven’t heard, the European Union Intellectual Property Office (EUIPO) issued a decision cancelling McDonald’s “Big Mac” trademark registration within the European Union. Although the decision was based on certain procedural and evidentiary issues, it resulted from a proceeding brought by McDonald’s European competitor “Supermac’s,” an Irish fast-food burger chain opened in 1978, in response to McDonald’s aggressive enforcement tactics.

Supermac’s offers a similar cornucopia of comfort food items, including chicken nuggets, french fries, and the “Mighty Mac,” which is:

A succulent double burger complete with two 100% Irish beef patties, melted cheese, crispy lettuce, diced onion with ketchup and burger sauce served in a toasted sesame seed bun.

Sound familiar? Here’s how McDonald’s describes the Big Mac:

Mouthwatering perfection starts with two 100% pure beef patties and Big Mac sauce sandwiched between a sesame seed bun. It’s topped off with pickles, crisp lettuce, onions and American cheese for a 100% beef burger with a taste like no other. It contains no artificial flavors, preservatives or added colors from artificial sources. Our pickle contains an artificial preservative, so skip it if you like.

Perhaps for these reasons, McDonald’s vigorously opposed Supermac’s trademark registrations a few years ago, arguing that the similarity between the names “McDonald’s” and “Supermac’s” (the Mc/Mac usage) would cause confusion among consumers.

Which one is the Big Mac, and which is the Mighty Mac? (hint: in order)

In 2017, Supermac’s retaliated against McDonald’s enforcement activities, seeking cancellation of McDonald’s own flagship marks. Central to Supermac’s narrative is McDonald’s “trademark bullying”–a topic we’ve discussed generally on DuetsBlog numerous times. Specifically, Supermac’s argued that McDonald’s purposefully engaged in anticompetitive conduct, including “registering brand names . . . which are simply stored away in a war chest to use against future competitors.”

It is not readily apparent that EUIPO ruled against McDonald’s on grounds related to bullying or overly-aggressive enforcement because, ostensibly, the ruling is based on McDonald’s failure to prove genuine use of “Big Mac” as a burger or restaurant name–which seems hard to believe given, among other things, The Economist’s Big Mac Index. However, Supermac’s is calling this a victory for small businesses, and a win in “a David versus Goliath battle against trademark bullying by a powerful multinational.” As a result of EUIPO’s ruling, companies may now freely use “Big Mac” throughout the entire EU. McDonald’s has said it intends to appeal the ruling.

EUIPO’s ruling seems absurd, but it makes me wonder if McDonald’s could have avoided this ruling, and the trademark bully label, by taking a less aggressive stance in enforcing its trademarks. Instead of seeking to prevent registration of the Supermac’s and other marks in a transparently-competitive posture, McDonald’s could have decided to target its enforcement on certain products and names (e.g., Mighty Mac), or simply compete on the basis of quality and price. McDonald’s could have also considered creative ways to discourage Supermac’s from using similar marks, employing humorous methods akin to Bud Light sending a medieval jester to deliver a cease and desist message on a scroll to Modist Brewing. Increasingly, brands need to seek a balance between uncovering and prosecuting all possible misuses and not enforcing rights at all. This latest EUIPO may, at its heart, be a lesson in more selective enforcement.

Update: This article was referenced, and Kyle was quoted, by the Washington Post on February 11, 2019.

Who comes to mind when I list the following character traits: lives in a dystopian metropolis, has a deceased parent, fights criminals, rides a motorcycle, has seemingly-superhero strength, is fearless, has dark hair, and–oh, by the way–his name is “Wayne.” More than that, you learn all these facts about Wayne by watching a trailer for a series about Wayne on YouTube, which informs you throughout that Wayne is a character “from the guys who wrote Deadpool,” a fictional superhero. Take a look for yourself:

It should probably come as no surprise that many people watching the trailer–myself included–thought this Wayne might be “Bruce Wayne,” the well-known secret identity of Batman. The comments to the official trailer demonstrate as much. Consider, for example, the “top comment” for the trailer:

The Bruce Wayne most consumers know is the wealthy orphan owner of Wayne Enterprises by day, crime-fighting superhero by night. YouTube’s Wayne shares many of the same traits (except, perhaps, the wealth), and one could certainly believe that the Wayne series might be an origin story for one of the most popular superheros of all time. Of course, by the end of the trailer, you get the impression that the Wayne you’re watching probably isn’t (though there’s no disclaimer):

In total there are over 7,200 comments for the trailer at the time of writing this post. Since the official trailer, YouTube has released additional teaser trailers for the series, each making it clearer that Wayne probably isn’t Batman. Yet, viewers still aren’t quite sure:

What I find interesting about these comments is that they are a readily-available (though perhaps unreliable) data set for proving, or disproving, the existence of customer confusion. Assume that DC Comics, the owner of the Batman mark and Bruce Wayne character (which does not appear to have been registered, but to which DC Comics could have common law rights and copyright protection) could sue YouTube for infringement or dilution. Arguably, the comments on the Wayne trailers show that consumers are drawing a connection between DC Comics and the Wayne series given the name, mood of the series, and common character traits with Batman. In this, YouTube may be free riding on Batman’s popularity. Depending on just how many comments reference Batman, the comments themselves could serve as strong quantitative data of confusion–akin to the kind of survey data usually used to prove that element of a trademark claim.

On the other hand, many of the comments for the series do not reference Batman or Bruce Wayne. Do non-references indicate a lack of confusion, or perhaps a confusion that is dispelled quickly after watching the trailers? This relates to the doctrine of “initial interest confusion,” which is temporary confusion dispelled before a sale or some other commercial harm, but still may be actionable because the party creating the confusion free rides on another’s mark to gain attention. Since widespread access to the Internet, initial interest confusion cases have increased tenfold, but courts disagree about the vitality of the rule. Regardless, that confusion appears to persist in this situation–as demonstrated by the comments for each new trailer–shows that the confusion here may be of the continuing and uncured variety on which many trademark claims are based.

Wayne fully releases on YouTube in January 2019. There do not appear to be any lawsuits pending at the moment. And there does not appear to be a “Wayne” trademark registration for the series. But if YouTube (or the series’ creators) file for one, DC Comics could oppose the registration–and has done so for similar marks in the past. We’ll keep you updated with any new developments! In the meantime, let us know what you think in a comment below.

A recent Mall of America and Nordstrom shopping trip (with visiting extended family), coupled with some initial moments of admitted boredom, led me to wandering through the shoe department:

Let’s just say, the stroll through the shoe department made it all worthwhile, to capture the above image, showing Louboutin’s latest fashion sense, leading to my mental stroll down memory lane:

Louboutin Red: Blending Into the Background

Louboutin Red-Sole & Surrounding Contrast: An Implied Trademark Limitation

Louboutin: Still Waiting on the Second Circuit Court of Appeals

Louboutin Wins Second Circuit Appeal, Sort Of . . . .

Louboutin & Lessons Learned

That seven month span of blogging was pretty special (February 12, 2012 through September 17, 2012), actually making the case for narrowing Louboutin’s red sole color trademark registration.

In the end, the Second Circuit Court of Appeals ordered the amendment of the red sole color registration to compel the limitation we said was implied: Contrast with the remainder of the shoe.

This, of course, opened the door to requiring that Louboutin tolerate monochrome red shoes, as any red soles on a monochrome red shoe would not possess the necessary constrast to be seen.

Since then, Louboutin has been seeking global protection for his contrasting red-color trademark applied to shoe soles, with a recent win in the EU, however, he’s currently been snagged in India.

Given the striking shoe above, other Louboutin spiked shoes below, and knowing Louboutin’s comfort with non-traditional trademarks, filings at the USPTO seemed plausible, but no, none yet:

Afterall, the spikes appear purely ornamental with the potential for acquired distinctiveness, and no functionality, well, unless this footwear is designed for, shall we say, painful kicks in the pants.

At this point, the Louboutin brand appears synonymous with the red-sole of a woman’s shoe, which probably explains the non-verbal trademark below being applied to other fashion items:

 

 

So, we’ll keep a lookout for new non-traditional trademark filings by Louboutin, while you keep a lookout for any look-for advertising that might set the stage for claimed rights in a spiked mark.

It’s fall, and you know what that means: football season! For many, this means a return to the couch each weekend to spectate America’s most-watched sport. But the popularity of doing so appears to be in decline. This shift isn’t only affecting the NFL, but also college football as well, as ticket sales continue to plummet. Increasingly among my own family and friends, it seems as if everyone is more interested in playing their fantasy leagues than watching reality unfold before them. Which is why, one would think, that leagues and other football organizations would want to promote discussion about football, rather than hinder it.

Credit: Geek.com

But football organizations are cracking down on, rather than encouraging, use of familiar football names and phrases. Some have questioned, for example, the NFL’s bully-like tactics in aggressively protecting the “Superbowl” name. The annual “big game” is so well-known and such a major event that it’s almost impossible not to use its actual name. Yet, the NFL persists, enforcing more than just its famous name, drawing the ire of commentators each year.

Such tactics appear to have inspired a recent filing by the Heisman Trophy Trust against “HeismanWatch.com,” for trademark and copyright infringement. The Heisman Trophy Trust, the complaint says, is the owner of a slew of federal trademark and service mark registrations related to the Heisman Trophy, “one of the most distinguished, prestigious, and recognized awards in all of sports, and perhaps the most famous of all individual awards in football.” The award is given to the most outstanding collegiate football player, usually a quarterback or running back, each year. You might recognize the trophy by its distinctive “stiff-arm” maneuver captured in bronze:

Credit: The Ringer

Defendant HeismanWatch.com is a website that offers information, analysis, and podcasts about the Heisman trophy award. It is known for its “one-of-a-kind regression model that processes simulated Heisman votes,” to predict in advance who will win the Heisman each year. It reportedly correctly predicted the most recent winner, Baker Mayfield.

The Heisman Trophy Trust, apparently, does not appreciate HeismanWatch.com’s analysis and attention. It alleges that the website is deliberately attempting to free ride on the fame and notoriety of the Heisman Trophy marks, and it says that consumers are likely to believe there is a connection between the website and the actual trophy organization. Of course, the fact that HeismanWatch.com exists at all belies any such connection; the Trophy selection is secretive, but the website helps fans read the field and guess who will win next.

Time will tell whether the Heisman Trophy Trust can prevail against a news reporting and commentary organization like HeismanWatch.com, but it’s not unprecedented. The Academy Awards sued “OscarWatch.com” over a decade ago, prompting the website to change its name to “Awards Daily.” One cannot help but think that HeismanWatch.com has an incredibly strong nominative use defense, though. Under nominative use doctrine, another person can use the trademark of another if:

  1. the thing identified by the trademark (here, a trophy) cannot be readily identified any other way;
  2. the mark is used only as much as is necessary for that identification; and
  3. the use does not suggest sponsorship or endorsement.

The nominative use defense protects free speech and against the need to use “absurd turns of phrase” to avoid liability.

Credit: Wikipedia

It’s difficult to imagine a viable substitute to the name “Heisman,” given the trophy’s actual name–and namesake. What alternatives are there to HeismanWatch.com that do not include the surname? One commentator  offered an idea:

BestOffensivePlayerWithAGreatPRCampaignOnAVerySuccessfulTeamWatch.com.

Of course, this is absurd. And generic alternatives would fail to adequately describe what the website does (e.g., OutstandingCollegiateFootballPlayerWatch.com). One also doesn’t have to look much farther than a simple Google search to find that the media regularly uses “Heisman Watch” as a phrase to discuss anticipation about the next awardee. Even ESPN has a section called “Heisman Watch.” This kind of ubiquity shows the obvious necessity of using the surname. The common use of the phrase also suggests there is a very low likelihood that collegiate football fans are confusing the website–or any other reporting source–with the actual trophy organization. These are hallmarks of fair use.

But setting aside the legal defenses, one has to wonder if organizations such as the Heisman Trophy Trust, NCAA, and NFL ought to relax a little, and encourage the kind of use presented by sites like HeismanWatch.com. These fan centers generate excitement about, and interest in, football. That’s something football desperately needs more of lately.

As Steve blogged earlier this week, we’ve had a lot of “zero” on the mind lately—marks related to the word and numeral. It got me thinking about the letter ‘O,’ especially since it has been in recent trademark news.

If you missed it, The Ohio State University and Oklahoma State University are now dueling it out at the USPTO over Oklahoma’s trademark application related to the block ‘O.’ Specifically, Oklahoma is attempting to register a mark of “a drum major marching while leaning back with head tilted back”:

According to Oklahoma, it has been using the singular block ‘O’ since 2001, most notably on the jersey of its band’s drum major (but also on sports memorabelia):

But in an opposition to the mark, Ohio says it has been using the same letter since as early as 1898, and it’s current main athletics logo includes the block ‘O’ in the background:

According to Ohio, Oklahoma’s use of the leaning and tilted ‘O’ is likely to cause confusion. I wonder if any other O-state institutions will weigh in—looking at you, Oregon.

On the one hand, the block styling of the Oklahoma ‘O’ could cause consumers to accidentally purchase sports gear from the wrong institution. On the other hand, the letter ‘O’ is such a fundamental unit of the English language that it’s hard to argue just one institution should be entitled to its exclusive use—even if it’s only in the college sports context. And Oklahoma is only seeking registration of a mark which uses ‘O’ in a minor fashion. However, Oklahoma’s marching ‘O’ mark could run into issues related to the requirement that the mark be used in commerce. After all, it’s a mark representing the band major, who wears an ‘O.’ How does Oklahoma otherwise use the mark or plan to use it commerce?

It turns out that the letter ‘O’ is not widely used as a mark on its own. There are some recognizable uses, though. Perhaps the most distinctive use of the letter ‘O’ is the Oprah Magazine:

In 2001, a German magazine also named ‘O’ sued Oprah’s ‘O’ magazine, but the suit appears to have gone nowhere, and Oprah’s ‘O’ lives on.

The only other major ‘O’ competitor appears to be Cirque du Soleil:

Maybe there’s some potential for confusion between the Oklahoma drum major and the high-flying circus performers. Though, I’m guessing the audiences for both don’t substantially overlap.

I think the few recognizable instances of ‘O’ marks can be explained by the overall minor distinctiveness a single letter can generate when used in connection with a brand. This is the up-hill battle both Ohio and Oklahoma will face in arguing their sides of the trademark dispute. Stronger letter marks are paired with other words, such as O Magazine and O Cirque du Soleil. Another example comes to mind: Toys ‘R Us (also in the news lately).

The battle for attorneys’ fees after an intense trademark dispute often leaves many prevailing parties empty handed. This is because the Lanham Act only provides for attorneys’ fees in “exceptional cases.” Congress’s (and courts’) reluctance to award attorneys’ fees stems from the “American Rule,” which provides that each party to a lawsuit is responsible for paying its own fees–unless a statute provides otherwise. But the Lanham Act erects a high bar to obtaining fees by requiring that the case be “exceptional.”

On the one hand, trademark owners should not have to fully shoulder the burden of what often turns into expensive litigation just to enforce their rights. Indeed, the estimated cost of protecting one’s rights can dramatically affect the calculus of whether to sue for infringement in the first place. But on the other hand, trademark violations are sometimes debatable and unclear. In such circumstances, the American Rule provides some protection to litigants who would otherwise be discouraged from seeking redress due to the risk that they might have to pay the defendant’s fees in the end if they lose. Thus, the Lanham Act strikes a balance, providing for reimbursement in cases of brazen and clear infringement–or brazen and clear abuse of the litigation process–while retaining the benefits the American Rule otherwise provides.

The Lanham Act’s fee provision has come up recently in two high-profile trademark cases: one involving Comic Con (reported on previously here and here), the other meme-famous Grumpy Cat (also reported on previously here). But the result was legally different in both cases, with Comic-con obtaining millions in fees under the Lanham Act, while Grumpy Cat obtained nothing under the Act, but recovered nevertheless pursuant to a contract between her and the infringer. What explains the different results?

Comic-con: The Comic Con (short for “comic book convention”) dispute began when the San Diego Comic Con sued the Salt Lake Comic Con for infringing on San Diego’s “Comic-Con” trademarks. The San Diego convention was one of the first comics-fan conventions.  And it is the largest convention of its kind, drawing more than 130,000 attendees each year. Salt Lake’s convention began in 2013, but it has quickly grown to over 120,000 attendees. Thus, it is probably no surprise that San Diego took exception to Salt Lake’s competing event and use of the same “Comic Con” name–though, as my colleague Jessica Alm pointed out, there are many other conventions across the United States using the same name.

San Diego Comic Con sued Salt Lake Comic Con for infringement. But despite the seemingly-debatable nature of the dispute (because the name could be generic, and it would be difficult to prove consume confusion), less than a year ago a jury determined that Salt Lake was liable for infringement in the amount of $20,000. Thereafter, San Diego moved for fees in the amount of $5 million–a little disproportionate, one would think (but perhaps not in view of San Diego’s requested $12 million in damages).

The district court judge granted $3.9 million. The reasons? Salt Lake repeatedly disregarded court rules, violated confidentiality rules, squandered judicial resources by relitigating issues, based arguments on irrelevant law, and attempted to bias the jury during the trial. The judge felt that the case stood out from others due to the “unreasonable manner it was litigated.” Expect an appeal on the $20,000:$3.9 million ratio.

Grumpy Cat: The Grumpy Cat dispute began when Grenade Beverage LLC, which had licensed Grumpy Cat’s trademarks (names and likenesses) to be used in trade dress and advertising for a new line of iced coffee products called “Grumppuccinos,” also used the marks in connection with a new coffee bean product without Grumpy Cat’s permission. Like the Comic Con litigation, the parties also litigated this case for three years. In addition, a jury awarded Grumpy Cat over $700,000–much more than San Diego Comic Con. But only $1 of that was for breach of the licensing agreement.

But unlike the Comic Con litigation, a federal judge recently denied Grumpy Cat’s request for approximately $320,000 in fees under the Lanham and Copyright Acts. The judge did, however, granted Grumpy Cat fees under the licensing agreement with Grenade Beverage–though, the judge said that there needs to be additional briefing on how much in fees can be awarded under the contract. Central to the judge’s decision on the Lanham Act fees issue was the fact that Grenade Beverage had not acted frivolously or in bad faith when they adopted an interpretation of the licensing agreement that entitled them to use Grumpy Cat’s marks in a line of Grumpy-Cat- branded “coffee products,” rather than just iced coffee. This reasonable difference of opinion–and, presumably, reasonable litigation behavior throughout the case–did not make out “exceptional” circumstances justifying fees under the Lanham Act.

In general, the Comic Con and Grumpy Cat cases provide two high-level teachings when it comes to fees. First, it is important to choose professional counsel, make reasonable litigation decisions, and take good faith positions throughout the course of a case. Otherwise, that conduct in and of itself may make the case “exceptional,” putting you on the hook. Second, attorneys’ fees provisions in a licensing agreement can serve as a helpful back-up if the Lanham Act fees request fails. But in providing for such fees, one should consider whether it is truly advantageous in the circumstances to remove the American Rule’s protections. That requires some thought…I need a Grumppuccino.

P.S. In April, I wrote about the USPTO’s attempt to obtain attorneys’ fees when it prevails in district court patent litigation. The Federal Circuit rejected this attempt, stating “the American Rule prohibits courts from shifting attorneys’ fees from one party to another absent a ‘specific and explicit’ directive from Congress. The phrase ‘[a]ll the expenses of the proceedings’ [in 35 U.S.C. § 145] falls short of this stringent standard.”

These lime green building sites caught my eye and jogged my trademark memory. First, the future home of the University of Iowa College of Pharmacy, at beam signing, on May 4, 2018:

Second, the expansion of the Metro Transit headquarters near downtown Minneapolis, on June 12:

Of course, the obviously common element of both building sites, besides my iPhone, is the same lime green sheathing, both also branded with the USG and SECUROCK word trademarks.

Then poof, they’re gone, after being covered by some black-colored sheathing, on August 2, 2018:

What’s my point? Actually, I have a few that immediately come to mind, so bear with me.

First, do you suppose United States Gypsum Company views the lime green color of its gypsum panels to be a trademark? Apparently there are no look-for statements on the product itself:

In looking for look-for ads that might draw attention to this particular shade of green as a brand, Green Means Go (scroll down after linking), is the closest I’ve found.

Let’s just say, USG has been far more effective in owning the color red as a band or stripe applied to packaging for plaster products, and the supporting look-for-like TOP RED word mark.

Still, it’s difficult to tell what USG thinks from the general legend used in its online brochures:

“The trademarks USG, FIRECODE, SECUROCK, IT’S YOUR WORLD. BUILD IT., the USG logo, the design elements and colors, and related marks are trademarks of USG Corporation or its affiliates.”

It’s even harder to tell, despite the “colors” mentioned in the legend above, after searching the USPTO, since USG allowed its Supplemental Registration — for what I’m calling the “lime green sheathing” — to expire without first obtaining, or at least, filing for Principal Registration.

The Supplemental Registration described the mark as “the color yellow green (Pantone 375) as applied to the goods.” Namely, “non-metal water-resistant boards and panels for construction.”

Why let it go?

I’m sure the color green is considered difficult to protect for sustainable building materials, but this color mark was narrowed down to the particular Pantone shade. Perhaps the shade changed?

Typically, a Supplemental Registration is considered valuable to a brand owner, while it works to build the evidence necessary to establish acquired distinctiveness for Principal Registration.

In addition, the Supplemental Registration for Pantone 375 was some indication that the USPTO did not view that shade of green as being functional even for sustainable building materials.

We’ll keep watching to see if Principal Registration is pursued.

In the meantime, let us know if you discover any better look-for advertising for USG’s SECUROCK gypsum panel sheathing. Loyal readers know how important look-for ads are for trademark colors.

Last, the now-you-see-them-now-you-don’t green gypsum panels remind me of the lavender color registration I convinced the USPTO to issue for spray in place insulation in 1994, oh the memories!

You never really need to wonder where the beef empanadas are, inside the display case, at least at Whole Foods, given the literal “beef” branding — visible on the edge of each outer dough shell.

This is a good example of a word appearing on a product that does not function as a trademark, as it does not satisfy the 3 elements of: identifying, distinguishing, and indicating a product’s source.

Instead, the word “beef” above connotes what’s inside, the primary ingredient of each empanada — you might say, it is merely informational, incapable of serving a trademark or brand purpose.

While “beef” could be a perfectly suitable and suggestive trademark for something not containing that meat, like clothing (assuming it’s available); as it is above, it’s simply a generic designation.

I’m thinking Whole Foods is missing out on an opportunity to also imprint on its empanadas a symbol that designates where they came from, who put them out, their source, don’t you think?

Hawaii seems to be on the mind here at DuetsBlog lately. Last week, I had the pleasure of visiting three Hawaiian islands for the first time. While there, I quickly became acquainted with Hawaiian life and language. It’s a beautiful place; I recommend everyone visit.

When I first landed on Kauai, the “garden island,” I was quickly greeted with “Aloha,” in sound, sight, and mind. Although most understand “Aloha” to be a friendly greeting, the word has much greater meaning. It also means love, affection, peace, compassion, and mercy. In one word, it embodies Hawaii–and, indeed, the State of Hawaii has declared that Aloha is its official spirit. It is “more than a word of greeting or farewell or a salutation. . . . ‘Aloha’ means mutual regard and affection and extends warmth in caring with no obligation in return. ‘Aloha’ is the essence of relationships in which each person is important to every other person for collective existence. ‘Aloha’ means to hear what is not said, to see what cannot be seen and to know the unknowable.” Haw. Rev. Stat. § 5-7.5(a). All government employees are instructed to “contemplate and reside with the life force and give consideration to the ‘Aloha Spirit.'” Haw. Rev. Stat. § 5-7.5(b). I guess they don’t call it the “Aloha State” for nothing!

With such importance to native Hawaiians, citizens of Hawaii, and the state themselves, it is no wonder that “Aloha” has also become a popular company, place, product, and service name on the islands. Throughout my journey there, I began to notice Aloha almost everywhere I went. See, for example, the following:

And the list goes on… In fact, a basic USPTO search revealed almost 500 live Aloha marks, and a search on the Hawaii Department of Commerce and Consumer Affairs revealed over 10,000!

Seeing Aloha used so frequently caused me to ponder the potential risks of choosing a word like ‘Aloha’ for use in a brand. On the one hand, the word used in connection with most goods, services, and places is arbitrary or fanciful. What is, for example, “Aloha Tofu?” And the word may be suggestive or descriptive of Hawaiian roots. But on the other hand, the word “Aloha” is so ubiquitous that it can hardly be said to be inherently distinctive. Its common use, standing alone, does not immediately identify a single source and seemingly undermines the ability to develop secondary meaning in the minds of at least a Hawaiian public constantly bombarded with the word. Tying additional words to Aloha (e.g., “Aloha Fridays” or “Liquid Aloha”) might create more distinctiveness. But there seems to be an overarching risk that the mark’s initial generic non-distinctiveness will never be overcome. This risk is akin to genericide, but not due to expropriation–rather, widespread appropriation.

I enjoy the Aloha spirit and hope it spreads far and wide. But its ubiquitous adoption could turn a word which means quite a bit (see above), into a word which means very little when it comes to trademark law.