Each month, Erise's trademark attorneys examine the latest developments in the U.S. Patent and Trademark Office, the courts, and across the enterprise to bring you the stories you need to know:
Fruity pebble colors are indistinguishable
Post Foods lost its appeal over the color mark on its Fruity Pebbles breakfast cereal, a ruling that shows why distinctiveness is an important hurdle to clear when seeking to register a color trademark. Ta.
In its application, Post filed a trademark “consisting of the colors yellow, green, light blue, purple, orange, red, and pink applied over the entire surface of the crispy cereal pieces,” evidence of which the TTAB I couldn't convince him. The USPTO's Trademark Trial and Appeal Board ruled that the proposed mark was not inherently distinctive and had not been shown to have acquired distinctiveness, the latter of which the TTAB called a “substantial” burden. .
Trademark attorneys argued that Post's “use of all colors in 'Breakfast Cereal' is neither 'substantially exclusive' nor consistent and is fatal to Applicant's claims.” [of acquired distinctiveness]. Consumers would not think that multicolored cereal refers only to the applicant, even though many other cereal manufacturers sell multicolored cereal. ”
Evidence submitted by the examining attorney to support its claim: Photos of 15 cereal boxes containing Froot Loops, Trader Joe's Fruity O's, Trix Fruity Shapes, and various store brand “Fruity Rice Crisp” cereals, as well as articles and recipes. The paper refers to “rainbow” colored cereals, stating that “consumers are accustomed to seeing a wide variety of breakfast cereals from a variety of sources, and are “further confirming our findings that it is not attributable to the source of the product.”
Captain Cannabis cancellation sets precedent
The TTAB's 2022 cancellation of the “Captain Cannabis” trademark based on evidence of prior use “similar to trademark use” was designated as the first precedential decision in 2024.
Laverne John Andrusik petitioned the TTAB to cancel a 2014 registration by Cosmic Crusaders LLC, which in the 1970s “created a costumed superhero character and comic book titled Captain Cannabis.” In 1977, he published an unpublished literary and artistic (comic book) titled Captain Cannabis. Andrzyk also registered the domain name captaincannabis.com in 1999 and used the name Captain Cannabis as a character in a comic book titled “420'' in 2006, which he continued from 2006 to the present. The company submitted evidence to the TTAB that the products were sold on a commercial basis. From 2013 to 2014.
The TTAB finds that this evidence is sufficient to establish that Andrusiek was using his trademark prior to 2014, first in a manner similar to actual trademark use and then as an actual trademark. It was judged.
“Appellants used the Captain Cannabis Mark in the United States in a manner similar to trademark use sufficient to create an association between the mark and the product in the minds of the relevant consumers, and subsequently Priority rights can be established by showing that you have used the mark within a “commercially reasonable period of time.”
Trader Joe's Union can use store logos
Trader Joe's employee unions can use the store's logo on union merchandise, a Los Angeles federal court ruled last month, completely dismissing the company's lawsuit against the union.
According to Reuters, last year, the grocery chain started to issue products such as tote bags and mugs that featured the store's logo and name, leading customers to confuse them into thinking they were manufactured or endorsed by the company. Last year, the store sued its union, Trader Joe's United, for trademark infringement.
In his ruling, Judge Hernan D. Vela of the U.S. District Court for the Central District of California wrote that the Trader Joe's case is “undoubtedly connected to an existing labor dispute, and the current case itself comes dangerously close.” It would be imprudent to believe that.” The Rule 11 provisions would have been filed were it not for the ongoing organizing efforts that Trader Joe's employees are (successfully) engaged in in multiple locations across the country. …
“There is no potential for confusion to be caused by the union's campaign products. …The logo used by the union is in a different font, does not utilize the distinctive fruit basket design, and applies concentric circles of different proportions. , applied to products that a reasonable consumer could not confuse as coming from Trader Joe's itself.”
Other marks in the news
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