Surge IP, LLC

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Trademark, Designs, Copyrights Branding and Related Litigation
TTAB Proceedings and Infringement Litigation
Intellectual Property Law, Publicity and Privacy Law
Admitted In Pennsylvania

06/24/2019

TracFone’s UNLIMITED CARRYOVER is not a mark

TracFone had sought a registration for UNLIMITED CARRYOVER to identify its telecommunication services. The Examining Attorney refused registration on the basis that UNLIMITED CARRYOVER fails to function as a service mark for its services. In a precedential decision, the TTAB agreed, focusing particularly on the evidence of use provided by TracFone. The Board determined that the phrase was set in the midst of other clearly informational manner and would not designate the source of TracFone’s services.
The Board rejected TracFone’s arguments that the “mark” had been in use for almost a decade and that registrations for ROLLOVER DATA and ROLLOVER MINUTES justified registration of UNLIMITED CARRYOVER.

LESSON - IMHO, the way TracFone uses UNLIMITED CARRYOVER doomed the application from the beginning. More prominent use may have helped secure a registration.

06/14/2019

Does AUGUSTA ECHO for Azaleas Conjure Impressions of Augusta National?

The Club thinks so. It filed an Opposition to AUGUSTA ECHO for azaleas claiming it would be damaged by misleading consumer into believing it sponsors or is associated with the goods and that the fame of its marks would be diluted or tarnished by its use. Registration of AUGUSTA ECHO was sought by McCorkle Nurseries, a company located within a few miles of the renowned club.

Before you answer, consider that McCorkle was able to overcome citations to two existing AUGUSTA marks, one for plants (owned by noted plant breeder Proven Winners) and another for fresh fruits and vegetables. McCorkle was also required to disclaim “Augusta” as being geographically descriptive of the origin of its goods.

I am not so sure that Augusta Nation has the requisite consumer recognition to prevail but it may have an ace up its sleeve - The 13th hole at Augusta is affectionately referred to as “Azalea.”

06/13/2019

Trademark or "Knot"??
Bottega Veneta sought registration of the depicted mark for footwear. The mark is described by BV as " ... consist[s]ing of a configuration of slim, uniformly-sized strips of leather, ranging from 8 to 12 millimeters in width, interlaced to form a repeating plain or basket weave pattern placed at a 45-degree angle over all or substantially all of the goods." After narrowly winning an ex parte appeal in September 2013 to advance its application to publication, the application was opposed by Marc Fisher LLC. In a decision on June 4th, the TTAB sustained the opposition "on the ground that the applied-for mark is a merely ornamental product design that has not acquired distinctiveness."
IMHO both decisions of the TTAB were correct. It is possible that such a design could rise to the level that consumers recognized the design as indicating the source of footwear and then that Marc Fisher LLC proved that had not actually occured in the marketplace. It shows the extreme level luxury goods makers will go to attempt to protect every aspect of its branding.
Let me know what you think!

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Pittsburgh, PA

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+14126577052

Website

http://www.surgeip.com/

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