Specificity in consent agreements in avoiding likelihood of confusion refusals is the key, according to the Trademark Trial and Appeal Board which found that a consent agreement between TIME TRAVELER BLONDE for “beer” and TIME TRAVELER for “beer, ale and lager” was not sufficient to avoid confusion. The agreement, according to the Board, was not properly designed and did “not fully contemplate all reasonable circumstances in which the marks may be used by consumers calling for goods.”
Through a comparison of the virtual identity of the marks, the goods, and specific trade channels, the Board found a convincing case for likelihood of confusion. The Board stressed that a consent agreement is just evidence to be included in the determination of a likelihood of confusion, but it is not a conclusive factor to avoid the refusal. The agreement between the parties focused on each party using their mark in connection with their house mark, as well as a geographical limitation limiting the Applicant’s use to New England and New York, while the Registrant had no geographical limitation. The Board found this also created a problem because the registrant was free to use the mark in the Applicant’s territory. All in all, the Board found that the consent agreement was insufficient and was outweighed by the other relevant likelihood of confusion factors. http://www.lexology.com/library/detail.aspx?g=a6058dc9-1c59-418a-954e-8d818d152120
The U.S. Court of Appeals for the Federal Circuit recently held that the longstanding “exclusion of disparaging marks” under Trademark §2(a) violates the First Amendment. The U.S.P.T.O. had barred registration of the mark The Slants, being used by an Asian-American rock band, finding that it fell within the “disparaging” definition of §2(a). This decision is not binding in other circuits, like the Fourth Circuit where the Redskins case is pending, and so this may not be the end of the battle for the band, as the Supreme Court will likely agree to hear the case. The majority opinion stated that this exclusion is a “viewpoint-based denial” which is unconstitutional. The Court cites to numerous examples of marks that are of a “non-disparaging manner” which present a particular group in a positive light, versus those the U.S.P.T.O. found disparaging, presenting groups in an offensive or hostile manner. Other points made by the majority include finding that trademarks are not “commercial speech” but expressive in nature, and that they are not to be considered government speech or tied to the government simply by being registered through the U.S.P.T.O.
The Copyright Royalty Board started off the New Year by announcing new rates for 2016-2020 that will apply to sound recordings on internet radio and webcasts. The new rates of $0.0017 for non-subscription streams and $0.0022 for subscription streams only apply to non-interactive digital music services, unlike YouTube, Spotify, and Apple Music. These interactive services negotiate deals directly with the copyright owners, as opposed to having a fixed statutory rate.
Brittany Maxey of Maxey Law Offices, PLLC recently presented “Intellectual Property, Anyone?” at the Southwest Florida SCORE Chapter and the Naples SCORE Chapter. SCORE is a nationwide, non-profit association dedicated to educating entrepreneurs and small businesses on matters essential to growth and success. Maxey’s presentation educated attendees on the importance of Intellectual Property to their businesses.
Intellectual Property Iconathon
On August 28, 2015, the United States Patent and Trademark Office and the Noun Project, a California-based organization that promotes the development of symbols to build a visual language, teamed together to hold, what they have dubbed, the “USPTO Iconathon”. This event aimed to create a set of universally recognized icons representing various Intellectual Property terms and concepts. Groups of intellectual property experts, designers from AIGA D.C. and Code for NOVA, and members of the public worked together and developed 19 new icons that are ready to be used around the world. http://www.uspto.gov/blog/director/entry/icons_for_intellectual_property_concepts; https://thenounproject.com/USPTO/.
Brittany Maxey, Esq. was recently interviewed by Bay News 9 where she provided insights into the effects of the theft of digitized books when a Bay area author’s new book on Cuba’s colorful history was pirated. Please click here to read the Bay News 9 Interview .
Brittany Maxey of Maxey Law Offices, PLLC recently presented for the “Intellectual Property, Anyone?” SCORE workshop in St. Petersburg. SCORE is a nationwide, non-profit association dedicated to educating entrepreneurs and small businesses on matters essential to growth and success. Maxey’s presentation educated attendees on the importance of Intellectual Property to their businesses.