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  • David Vance

THE Taco Tuesday - A story of scandalous trademarks!

Well, not exactly, but you'll see how it all comes together in today's post. 

Trademarks have definitely hit the mainstream recently with reports about THE Ohio State University (THE-OSU) filing a trademark application for "THE" and Lebron James (maybe it's THE Lebron James since he's from Ohio) filing a trademark application for "Taco Tuesday."  Both of these trademark applications have received a first rejection, which calls into question whether or not either party will be able to register their mark.  Of course, had either of THE-OSU or Lebron James been reading my blogs they would have known to "Expect the Rejection!"

Before discussing why THE and Taco Tuesday were rejected, let's take a step back and talk about the basics of trademarks. 

What is a trademark?  It's a word, phrase, symbol, design, or combination thereof that identifies and distinguishes goods of one party from those of others.  Identifies and distinguishes are your words of the day.  

You've seen the Nike swoosh adorning clothing or Coke printed on a soft drink can.  Those symbols are trademarks identifying the source of the clothing or drink (Nike and the Coca Cola Company). These well-known marks tell a purchaser what company made the products.  Many consumers will buy a good simply because they know and trust the trademark that adorns it.  

Can anything be trademarked?  No. There are limitations. Only distinctive marks can be registered as trademarks.  The most distinctive marks are those that are fanciful, arbitrary, or suggestive (e.g., Amazon books or Toyota automobiles).  These are typically easy to register with the USPTO, as long as no one else is using a similar mark.  Marks that are descriptive (e.g., Delicious Cakes bakery) or generic (e.g., bIkE brand bicycles) are difficult if not impossible to register.  

If you want to trademark your goods, then you want to use or create a word, phrase, symbol, design, or combination thereof that is fanciful, arbitrary, or suggestive.  For example, if you've designed a new brand of liquid soap, then Molten Dirt Blaster (fanciful) would be much easier to register than Pourable Soap (descriptive).

Back to our rejected applicants, Taco Tuesday was rejected for being a commonplace phrase (i.e., it's possibly generic).  THE was rejected for not being a trademark (ornamental display versus a mark that identifies the source of goods).  These might not have been carefully thought out trademark strategies.  Instead, they were more likely two parties trying to take advantage of recent publicity.  For example, NFL fans know players introduce themselves as having played for THE Ohio State University. 

While I am poking fun at THE Ohio State University and Lebron James, there is a lesson to be learned.  Trademarks can be extremely useful and valuable.  But, they have to survive the scrutiny of the USPTO.  A carefully thought out strategy will simplify your registration process.  If you start with a fanciful or arbitrary or even suggestive mark, you're halfway there.  Instead of arbitrarily choosing a mark, you and your company would be better served to carefully choose an arbitrary mark (e.g., Apple computers). 

 If you have the next Molten Dirt Blaster but haven't thought of a fanciful or arbitrary name, I would love to help you craft your trademark strategy.  


PS  Scandalous?  Well the Supreme Court has recently ruled that because of 1st Amendment considerations, the USPTO can no longer block the registration of scandalous, immoral, or even disparaging marks.  

PPS  Full disclosure, I attended THE Ohio State University for my Ph.D. in chemistry!  Go Bucks!

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