Cool Gear v Silver Buffalo re Trade Dress in Water Bottle Cap

cool gear flip and flow cap

“. . . a distinctively configured flip forward spout and elegant elliptical, angled loop handle at the top, and at the side, distinctive texturized surfaces and raised vertical bars, interspersed around the side of the cap.”

cool gear flip and flow cap complaint


ED VA Denies Blackhorse Motion to Dismiss In REDSKINS District Court Appeal

You need a little background on this. There was an inter-partes proceeding before the Trademark Trial and Appeal Board, where the Blackhorse petitioners successfully petitioned the TTAB to cancel Pro-Football’s REDSKINS trademark on the grounds that the marks were ‘scandalous, disparaging and may bring Native Americans into contempt or disrepute’ under Section 2(a) of the Lanham Act.

15 USC Section 1071 controls appeals of TTAB inter-partes decisions. Registrant Pro-Football elected a de novo appeal to the ED Virginia, so Pro-Football appears as plaintiff in the caption and the Blackhorse parties appear in the caption as defendants. The Blackhorse defendants moved to dismiss on the grounds that they are not ‘parties in interest’ because they have no actual economic or legal interest in the marks.

The Blackhorse defendants are statistically unusual as Section 1071 defendants go. If this was a Section 2(d) proceeding where two parties were fighting over the same mark, or if this was a Section 2(e) proceeding where competitors were fighting over whether registration should be granted to an arguably generic term, then the economic interest of such a defendant defending the appeal would be readily apparent.

On the other hand, an inter-partes proceeding under Section 2(a), the ‘scandalousness’ provision, is an odd duck. Normally, the Commissioner of the PTO refuses registration under this section, so the Commissioner would defend such appeals. The Blackhorse fact pattern doesn’t arise often (if ever).

Here, the interest that the Blackhorse defendants asserted as their damage in the petition, namely that they are representatives of the group that is damaged by the on-going registration of the Marks, is the interest that they will be defending, and the interest that makes them parties in interest.

redskins motion to dismiss.pdf


5000 Trademark Blog Posts

There have been 5000 posts on The Trademark Blog since May 2002. If your trademark attorney had read all 5000 posts, then they would be informed. If they had written all 5000 posts, then they would be me.


Recent District Court Decisions


The Evolution of Slogans

Source: BestMarketingDegrees.org


Leason Ellis v Patent & Trademark Agency LLC Final Consent Judgment

LE v PT_A consent judgment.pdf


Will The Real Virtual Marilyn Monroe . . .

robot marilyn

Marilyn Monroe is one of the most valuable ‘personas’ ever (its a little ghoulish to put it that way but there you are). I have blogged many disputes relating to Marilyn Monroe’s personality rights (or lack thereof).

Now we have a declaratory judgment action relating to the creation of a ‘Virtual Marilyn.’

The image above is not the subject of this dispute, but an image I located here, assuming that if I searched ‘robotic marilyn’ in Google Image, I would find a reference to the iconic image from ‘Seven Year Itch.’

virtual marilyn rts of publicity.pdf


ICE IMPERIAL trade dress v DEPREVILLE ICE trade dress

imperial icedepreville ice

Moet & Chandon sells ICE IMPERIAL champagne, ‘the first champagne specifically developed to be served on ice.’ Defendant sells DEPREVILLE ICE champagne. This is a description of plaintiff’s federal registration for its trade dress:

The color(s) white, gold, silver and black is/are claimed as a feature of the mark. The mark consists of a three-dimensional bottle design. The bottle is white. There is a silver diamond pattern at the base of the bottle. The silver diamonds become increasingly smaller as they go up the bottle, turning into silver dots and gradually fading into solid white. The foil on the top of the bottle is white with an embossed diamond-like pattern. The word “MOET” appears vertically in gold on the neck of the bottle. Above the word “MOET”, there is a gold star. Underneath the word “MOET”, there is a ribbon design in black with gold trim around the neck of the bottle. Where the ribbon crosses, there is a circular gold seal featuring the words “MOET & CHANDON EPERNAY FRANCE”, a stylized crown design, and “1743”, all in black. At the base of the bottle, there is a rectangular white label with the words “MOET & CHANDON ICE IMPERIAL” in black in the center. Above the words “MOET & CHANDON ICE IMPERIAL” on the label is a gold crown design, and underneath the words is a gold star. There is a thin gold band at the top of the bottle label, and there is a thick gold band at the bottom of the bottle label.

ice imperial v depreville trade dress.pdf


Recent District Court Decisions


Recent TTAB Filings