Designed to appeal and speak to the customers of a specific time and place, trademarks can become hallmarks of a bygone era.

The controversy surrounding the use of the REDSKINS trademark and logo shows just how much the public reaction to symbols can alter and shift over time.  In a decision now on appeal, the United States Trademark Trial and Appeal Board cancelled the REDSKINS trademark registrations, ruling that they were considered disparaging and offensive to approximately one out of three native Americans when they were registered.

Stepping back from this present day dispute, pioneer and native American symbology once captured the popular imagination in the early 20th century.  Businesses sought to capitalize on romantic visions of western expansion by adopting symbols recalling the Old West.  Once those nostalgic reference points lost commercial traction with consumers, these companies changed shopworn symbols of brand identity or perhaps the companies and products faded away altogether from the marketplace.

How many of us can now connect the following former trademark symbols referencing the Old West with their original producer and the products they were meant to brand? This brief reprise underscores how dynamic trademark symbols are in adjusting to the tastes and sensibilities of each new generation of American consumers.  Answers follow at the end.

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Continue Reading Trademarks as a Barometer of Change: A Pop Quiz

Nancy Pham is a Lane Powell 2012 summer associate and is currently attending her second year of law school at the University of Washington Law School.  She may be contacted at npham17@gmail.com.

For microbrewers, taste and memorable names mean everything.  Loyal customers often ask for specific brews and word-of-mouth advertising is indispensable, since microbrews are often purchased in local restaurants and bars.  

Like many small businesses though, protecting your microbrewery brand and trademarks often raises a basic financial issue: Is it worth it?  This brief article explores some cost-effective ways to build your own beer brand identity, while also guarding against the possibility that you may be infringing upon the already established trademark rights of others.  

The “Knockout” Search

So, before you begin taking that home brewing hobby to the next level and coming up with the perfect name for your craft beer and perhaps your own brewpub, you should take advantage of some readily available resources to make sure that someone else has not already beat you to the punch.   

What you’re undertaking is called a “knockout” search in trademark circles.  Your goal is to find a brand name that is not confusingly similar to other products already on the market for beers or other products that may be related to alcohol or beer consumption.  The goal of trademark laws is to prevent confusion among consumers as to the source or origin of products or services.

While it may seem tempting to be playful and incorporate someone else’s famous trademarks[1] on your microbrew label, you should avoid that form of potential instant name recognition.  Famous marks are protected from having their commercial impression diluted by even unrelated goods or services.   

Likewise, the owners of famous marks can prevent “tarnishment” of their marks by use on products they deem to be unsavory—alcohol being a common such product.  Owners of famous marks often have the financial means and incentives to pursue even small-time poachers of their brands. 

In the age of robust Internet search engine capabilities, the good news is that a simple knockout search only requires an investment of your time. 

First, visit the United States Patent and Trademark Office website.  Running a free Trademark Electronic Search System (TESS) search will come up with all federally registered trademarks (with a margin of error based on search terms or how marks may have been categorized in that database).  

Second, a similar search should be conducted for state-registered trademarks.  Each state varies and while there are currently no TESS-equivalent knock-out searches available[2] in Washington or Alaska, Oregon does have its own trademark search.  This is another reason why a thorough Internet search is valuable, since it is more difficult to research state-registered trademarks.  

Third, because trademark rights under common law accrue automatically when they are being used in commerce, a search on the Google, Bing, or other search engines may also provide useful information about business websites and social media pages that are using trademarks that may be protectable, even though they are not registered in state or federal trademark databases.   

You’ve Explored the World Wide Web.  Now What?  

There are several scenarios that can happen after a knockout search is performed:  Continue Reading “Hey Barkeep, Pour Me A Pint of…”: Trademark Tips for Microbreweries

Plant patents occupy a seldom studied corner of potential patent protection.  But plant patenting is taking on new importance as growers and producers of fruits and vegetables—once branded only as commodities—take advantage of the premium price points more specific patent and trademark rights can yield.  Commodities appeal to the undifferentiated masses; but marketing targeted to individual taste preferences is now the order of the day.

What are Plant Patents?

Established through the Plant Patent Act of 1930 (the PPA), this intellectual property right is granted to any person who “invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings . . . .”  35 U.S.C. § 161.[1]

The Act’s legislative history describes this provision in layperson terms: “[T]he bill provides that any person who invents or discovers a new and distinct variety of plant shall be given by patent an exclusive right to propagate that plant by asexual reproduction; that is by grafting, budding, cuttings, layering, division, and the like, but not by seeds.”

The PPA does not provide patent protection for varieties of plants found growing in an uncultivated or wild state.  So, sorry to all you plant foragers!  Tuber propagated plants (e.g., potatoes) are also excluded from plant patent protection.

Before the PPA was enacted in 1930, patent laws seemed to favor industrialists over farmers.  This rankled the most famous American plant breeder of the time, Luther Burbank.  He bemoaned the fact that:

I have been for years in correspondence with leading breeders, nurserymen, and Federal officials and I despair of anything being done at present to secure to the plant breeder any adequate returns for his enormous outlays of energy and money.  A man can patent a mousetrap or copyright a nasty song, but if he gives to the world a new fruit that will add millions to the value of earth’s annual harvests, he will be fortunate if he is rewarded by so much as having his name connected with the result.[2]

In the 21st century, the goals of the PPA may be coming closer to fulfilling Luther Burbank’s plant breeder aspirations.  Take cherries, for example, which are now coming into season in droves.  While Bing cherries—Royal Annes in an earlier era of canned cherries—still dominate the U.S. market for fresh cherries, it is becoming more highly differentiated with new market entries.[3]  Aficionados can distinguish among and may prefer a Rainer, a Chelan, a Lapin or a Summit cherry, instead of that good ol’ Bing cherry. Continue Reading The Growing Allure of Plant Patenting for Brand Differentiation