16
Feb/06

Can A Fake Product Have A Real Trademark?


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Oasys Mobile maintains the PHEROTONES site to promote ringtones that (like pheromones) arouse the listener. This NY Times article details how PHEROTONES are a fake product, part of a viral marketing strategy (which seems to be working).
Now, assuming that the joke takes off and the PHEROTONE name acquires some value. Can a ‘fake’ trademark be used in commerce?
The answer is that the ‘fake’ trademark will need to be used with real goods or services. In this case, it appears that Oasys is using PHEROTONE to promote its ‘real’ ringtones.
Not as fortunate was the applicant in this TTAB appeal for the mark AUTHENTIKRUD, which was the name of a fake product intended to promote applicant’s catalog services. In rejecting the application, the TTAB articulated a two part fake mark test: (1) the consumers have to get the joke; and (2) they have to perceive the joke mark as promoting the ‘real’ services.

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