Pep the Dog

You know, if I were Microsoft, I'd do my own I'm a PC I'm a mac commercials, except with Samuel L. Jackson as the PC.

Just sayin'...

"Apple Computer is being sued in London by Apple Corps, owned by the former Beatles and their heirs. This is a third battle over the name 'Apple' in Britain. Apple Corps has previously been awarded $26M by Apple Computer for the use of the name."

For the kids:

Just so you know, The Beatles was a popular beat combo in the 1960's and 1970's, Apple was the name of their record label at the time.

'Records' were large black circular discs made from vinyl. The disks had grooves cut into them. A metal needle would slide along the grooves in the disk and make sounds (mostly popping and scratching sounds).

Vinyl is a fragile black plastic that was popular at the time.

There were no video games back then, which is why music was so popular.

The Washington Post reports that the USPTO has approved for Registration the mark "Nationals" for clothing. Problem is that the owner of the mark is not the Washington Nationals Baseball Organization, or Major League Baseball.

MLB is of course, suing (why didn't they file an opposition?). The case is scheduled to begin at U.S. District Court in Manhattan on April 3 -- the day the Nationals are to open their second season with a game in New York against the Mets.

Go Nats!

From TTABlog In a long and rambling opposition document, McDermott, appearing pro se, alleges that the word "dyke" fosters hatred of males and that issuance of a registration for the DYKES ON BIKES mark would amount to an endorsement of this hatred by the USPTO. (Opposition No. 91169211, filed on February 15, 2006).

What's this got to do with Trademarks? Absolutely nothing. It just creeps me out beyond belief.

"According to a Yahoo News story, half of the world's human population is infected with Toxoplasma, a parasite shown to alter the brain function of rats, inducing them into behavior that benefits the parasite but is suicidal for the rat. So what affect does it have on humans? Article comes complete with Heinlein 'Puppet Masters' reference. I call dibs on using Toxoplasma as a name for my rock band."

Saw it on Slashdot

New blog dealing with fashion copycats, knock-offs and counterfeits, by IP law professor Susan Scafidi.

From the site: "This site is about the culture of the copy within the multi-billion dollar global clothing and textile industry. It’s about New York’s Canal Street and Beijing’s Silk Alley, but also about the cognitive and sociological reasons that make us want to buy or reject knock-offs in the first place. It’s about political and legal developments, but also about why both technological efforts and the social norms of the fashion industry continue to be more effective than law in supporting creativity. It’s about the centuries-long, arguably productive battle between designers and copyists, and also about why the modern world threatens to upset that balance. It’s about the universal phenomenon of copying, and about the law’s limited response."

Very interesting and fun to read - Give it a look if you are interested in this stuff.

The Seattle Seahawks ran an end-around on Texas A&M, filing notice Thursday to remove from an Aggie hometown court the dispute over the "12th Man" slogan.
...
Because Texas A&M is alleging a violation of its federally registered trademark by the Seahawks, a federal court has jurisdiction in the case, according to documents filed by J. Michael Bell, a Houston-based lawyer for the team.
...
The Seahawks have recognized their followers as a "12th Man" since the mid-1980s and even retired the No. 12 jersey in 1984. Now with Seattle in the Super Bowl, their "12th Man" promotion, which previously has aggravated the Aggies, has gained an even higher profile.
...
At A&M, the slogan dates to 1922 when a student, E. King Gill, was pulled from the stands to suit up for the injury-depleted Aggies as they faced top-ranked Centre College. Gill didn't play, but he was the last player standing on the sidelines in reserve as the Aggies won 22-14.

A tradition was born. "Home of the 12 Man" is in huge letters at Kyle Field, where Aggie students stand during games as a sign of their readiness and support.

Keyboards Are Disgusting (from the my-spacebar-has-spawned-sentient-beings dept).

A test carried out by Pegasus Lab for the Swedish magazine PC "För alla," showed that a normal PC keyboard was infected by more bacteria than a normal toilet seat. The average keyboard contained 33000 bacteria per square centimeter, compared to 130 on a ordinary toilet seat. The tests also showed occurrence of up to 3100 fungi per square centimeter."

Ewww!

HARRISBURG, Pa. - The distinctive chocolate bar on the dust jacket of a new book about the founder of The Hershey Co. violates its trademark, the candy maker said in a federal lawsuit.
...
Hershey spokeswoman Stephanie Moritz said Monday the company is concerned that consumers may think [Hershey] "authorized, sponsored or approved" the book. It wants to prevent Simon & Schuster from distributing the dust jacket.

more...

Notice Regarding Certain Requests for Extension of Protection Under Trademark Act § 66(a)

Pursuant to Trademark Act § 68(c)(1), 15 U.S.C. § 1141h(c)(1), the USPTO must, within 18 months of the date a request for extension of protection is transmitted to the USPTO, send to the International Bureau of the World Intellectual Property Organization notice of: (A) a refusal of registration based on examination of the request; (B) an opposition to registration; or (C) the possibility that an opposition may be filed after the conclusion of the 18-month period. If a notice under either subsection (B) or (C) is not sent within the 18-month period, the Trademark Trial and Appeal Board may not entertain an opposition to registration, and “the Director shall issue a certificate of extension of protection pursuant to the request.” Trademark Act § 68(c)(4), 15 U.S.C. § 1141h(d)(4).

The notice required under § 68(c)(1)(C), 15 U.S.C. § 1141h(c)(1)(C), was inadvertently not sent with respect to a number of requests for extension of protection, which are listed below by serial number. Because in each case more than 18 months has passed since transmission of the request for extension of protection to the USPTO, no opposition or extension of time to oppose may be considered, and if filed, will be dismissed. The USPTO will promptly issue a certificate of protection with respect to the listed requests.

Affected parties are not precluded from filing a petition for cancellation of the certificate of protection, if otherwise appropriate.

Finally, the burning issue of how President Bush's SCOTUS nominee Judge Alito handles Trademark cases exposed!

Securacom v. Secuaracomm, 97-5794 (3d Cir Jan 20 1999) (Alito, J.).

Last fiscal year (FY 2005) busy applicants filed 258,527 applications (containing 323,501 classes). That's an 8.4% increase over FY2004. Of those, 12,449 were Requests for Extension of Protection (Section 66(a) applications). Pendency (the average time between filing and a first action) was 6.3 months. We Registered 112,446 marks (143,396 classes), bringing the total number of live, registered marks to 1.2 million.

The PTO is again considering changes to the Trademark Rules that would allow an applicant to request more than one 6-month extension request for filing a Statement of Use at one time.

The Trademark Operation will begin a new project to improve the accuracy of design search codes. Postcards and/or e-mails will be sent to design-mark applicants that will indicate the design search codes assigned by Pre-Exam to a particular mark. Applicants will then have an opportunity to suggest corrections or additions. Requests for correction or addition may be sent to: TMDesignCodeComments@uspto.gov.

The PTO is planning to allow pdf files in addition to jpegs, as attachments to TEAS responses to office actions. The target date for this change is December 17, 2005.

TTAB watchers were swooning last week as the TTAB deemed 2 of its decisions suitable for publication. In all of 2004, only 12 cases out of about 600 were considered worthy of this honor – 1:50 ratio. Yet last week two precious published cases were rolled out, giving trademark practitioners across the country a case of the vapors. Both cases were ex parte decisions.

In re KRB Seed Company, LLC, Serial No. 76289621


REBEL for grass seed found to be a varietal name and therefore generic. Applicant argued that the USPTO’s treatment of varietal names as generic and unregistrable is “wrong, dated and inconsistent with modern intellectual property law.” In applicant’s view, ownership of a utility patent or other temporary government granted monopoly does not necessarily preclude registration as a Trademark; the company that came up with the now-generic name should be able to use it as a trademark and preclude competitors from using the generic name for their goods.

However, Judge Kuhlke made the common sense argument that:

"... the policy of the USPTO is in accord with the PVPA, UPOV and case law since 1942, all of which codify and implement the common sense notion that when a new plant is created it must be called something, and that when others begin to sell it after expiration of the breeder’s protection period they need to call it by the name that it is known or otherwise consumers will not know what they are buying."

In re First Draft, Inc., Serial No. 76420605,
FERN MICHAELS for books. Judge Rogers ruled that an author’s name, even if only a pseudonym, does not function as a mark and may not be registered as a Trademark unless the record contains sufficient evidence of promotion and recognition as a source indicator.

The reason this was deemed a case of first impression was that author’s name was a pseudonym, not the real name. But the case did contain this interesting footnote:

"The fact that a few third-party registrations have been allowed
over a long period of time hardly establishes current Office
policy. There may very well be as many or more abandoned
applications wherein registration was refused on similar records.
The Board's responsibility is to focus on the record at hand. We
do not think it a useful exercise for applicants and examining
attorneys to spend inordinate resources combing through large
numbers of registration or abandoned application files when
application of the law to the record at hand should suffice."

In a citable decision In re Isabella Fiore, LLC, the TTAB cited Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d 1689 (CAFC 2005) in applying the doctrine of foreign equivalents to a Section 2(e)(4) refusal.

Here, the mark FIORE was used on goods in class 18. The Board concluded that FIORE, an Italian word meaning "flower," is "the type of term that potential customers would stop and translate," and therefore that FIORE is not "primarily merely a surname." So while Americans would not "stop and translate" VEUVE into WIDOW, they would stop and translate FIORE into FLOWER. Got that? Apparently real Americans will not stop and translate common French words, but will stop and translate common Italian words...or something...

Good analysis from John Welch of TTABlog:

"Section 2(e)(4) bars registration of a mark that is "primarily merely a surname." It doesn't say "primarily merely a surname, unless the mark comprises a foreign word that translates into a common English term." Here, the PTO established that FIORE is not a rare surname and has no other meaning in English other than as a surname. Applicant conceded that it is indeed a surname. The Board recognized that it has the "look and feel" of a surname, but then downplayed that factor. Instead it gave decisive weight to the fact that "fiore" means "flower" in Italian."

More...

It was announced at yesterday's TPAC meeting that Carlos Guitierrez had (finally?) named Lynne Beresford Commissioner for Trademarks. She had been serving as the Acting Commissioner for Trademarks since Anne Chasser stepped down.

Lynne joined the Trademark Operation as an Examining Attorney in 1979. She served as president of NTEU 245 in 1984, and in 1986 she was promoted to managing attorney, heading up the office that is now Law Office 105. Lynne has served in the Commissioner's Office, and in the Office of Legislation and International Affairs. She chaired every meeting of the World Intellectual Property Organization's (WIPO's) Standing Committee on Trademarks, Industrial Designs, and Geographical Indications from its inception in 1997 until late 2001. Lynne holds a juris doctor from Rutgers, the State University of New Jersey, and is licensed to practice in the State of Pennsylvania.

Congratulations, Lynne!