TTABlog lives it

The Patent and Trademark Office has denied reconsideration of its denial of John Welch’s application for a registration for TTABLOG. John has appealed — to the Trademark Trial  and Appeals Board (TTAB). Well, of course, John. How could it be otherwise? Your application was never meant to be granted anywhere south of the topic of your blog, and the examiner knew that. This is shaping up to be one of the great self-referential trademark adventures…

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Stop Islamization of America Logo

Mark their words

Jihad Watch and Atlas Shrugs — two websites run by friends of mine who have very clearly articulated views about Islamic radicalism, and controversial ones about what to do about it — are busy, and then some, with this story: A federal agency has rejected a request for a trademark by the organization “Stop Islamization of America” because its name may “disparage” Muslims. The group launched by Atlas Shrugs blogger Pamela Geller and Robert Spencer... Read more

Hitler on copyright

The “Downfall parodies” aren’t really parodies, in the legal sense.  But as this one demonstrates, “Hitler” does seem to understand something about copyright, law, IP management and, of course, slaloming through alternative realities: Never before has an historical figure, much less one of history’s most evil men yet one still regarded as some kind of transcendent figure, been so thoroughly, widely and ubiquitously mocked and cut down to a symbol of utter foolishness.  And, as “he” points... Read more

Hurricane Harvey: Have a Heart for Houston

Via @elizabethking: I spoke with World Trademark Review about the IP community’s response & outreach on #HurricaneHarvey Link: #Houston — Elizabeth King (@ElizabethKing) September 5, 2017 And here’s the hook for HIPLA (the Houston Intellectual Property Law Association): HIPLA wishes each of our members and their families well in this difficult time of repair and recovery from Hurricane Harvey. While there is no doubt that Houston will recover from this disaster, there are members... Read more

Yelp for evidence

Anonymous online comments as proof of a LIKELIHOOD OF CONFUSION at the preliminary injunction stage? Evan Brown explains: In a trademark case between competing health clubs, the court considered a Yelp posting in entering a preliminary injunction, finding that while the anonymous posts were not conclusive evidence of actual confusion, they were indicative of potential consumer confusion. . . . The court rejected defendant’s hearsay argument. It noted that affidavits and hearsay materials which would not... Read more


City walls including David’s Tower and the Valley of Hinnom, from Jaffa Gate Originally uploaded by Likelihood of Confusion. I was in Israel last week. In Israel there is more capacity for confusion, and for clarity, than anywhere else. You can see my abbreviated travelogue by clicking on this picture of the city walls of Jerusalem, overlooking the very gate of Hades (appropriate for a litigator). Originally posted 2013-11-03 23:05:05. Republished by Blog Post Promoter Read more

Best of 2013: WAL-ZYR versus ZYRTEC: Allergic to legislating trademark law?

First published February 14, 2013. I have no problem using the TTABlog for a blog launching point every week. Why would I when I can riff on a post such as this one, about an important decision involving the LIKELIHOOD OF CONFUSION between a “nationally advertised brand” — Zyrtec, the allergy medication — and a store brand, in this case Walgreens’ WAL-ZYR: The Board sustained this Section 2(d) opposition to registration of the mark WAL-ZYR for ““pharmaceuticals,... Read more

Sea change on web-based contract amendments

The Ninth Circuit sounds really right on this: Service providers should not be able to change their terms of service arbitrarily without notifying their registered users, according to the judges in the US Court of Appeals for the Ninth Circuit. The decision on the case of Douglas v. Talk America (PDF) could affect how web site operators handle changes made to user agreements, regardless of what the user originally agreed to…. “Parties to a contract... Read more

That’s it. That’s the post.

Really, just Sarah Burstein: Okay, okay. Sarah and Dennis Crouch. “Iconic,” of course, could stand in for “secondary meaning,” in this case acquired distinctiveness. But that is essentially a judicial crapshoot, so why not sue? If your company is big enough, you’ve got a pretty good shot of getting your own trademark phantom tag. Read more

A new wrinkle in Internet privacy

The Alex Kozinski dustup has everyone clucking his tongue over the seemingly inevitable march toward realization of the dictum that there is no expectation of privacy for anything going on or through the Internet.  One would think that is certainly the case of text messaging, following the sad case of Kwame Kilpatrick. So what do we make of this, from Orin Kerr?: The Ninth Circuit handed down a very important decision today in Quon v.... Read more

Second Circuit and the whole of the law on confusion

This is big, but stay calm.   Though I hardly can. I took some heat a little while ago for suggesting, contrary to my generally skeptical view of what constitutes trademark use in commerce (a legal premise of infringement), that there’s something very flabby about the argument that the use of trademark-protected words as search terms by competitors can never be infringement.  (I never said it always is.)  And until now, district courts in the Second... Read more

The only unmentionable trademark?

We alluded to this story in an earlier post. Evidently Daman Wayans’s attempt to file a trademark application for the word “Nigga” continues to hit a brick wall. Forget “immoral or scandalous,” which, as we have said before, is an increasingly hopeless position for national government to take on almost anything in this enlightened era. Interestingly, though, this one will probably stick. Political correctness — in this case, quite correct! (most of the time) —... Read more