Energy Drinks and Nutrition Bars too Related to Avoid Consumer Confusion
By Guest Blogger Michael Mangelson
This post also appears on the Essential Nutrition Law Blog
The Trademark Trial and Appeal Board (TTAB) recently issued a decision that highlights the importance of not assuming that goods that fall in different international trademark classes are unrelated in a likelihood of confusion analysis. In In re Spirits of the USA, LLC (not citable 4/21/10), the TTAB held held that energy drinks (class 32) and nutrition bars (classes 5 and 30) are too related to avoid a likelihood of consumer confusion when used in connection with the mark "Runner". The TTAB concluded that energy drinks and nutrition bars both provide energy and are commercially related products that are sold in the same channels of trade to the same classes of consumers, so confusion is likely.
How can you know if the relationship between the products you plan to list in your trademark application and those in an existing third party registration are likely too close? Do what examining attorneys at the USPTO do: search for third party registrations that list both your products and the products listed in the registration in question. If a number of these third party registrations exist, the examining attorney is likely to cite them in a refusal claiming that this evidence suggests that the listed products are of a type which may emanate from a single source and therefore are likely to cause confusion in the marketplace. (See In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993)).
Trademarking Green/Eco-Friendly Food - What You Need To Know
By Guest Blogger Jere Webb
It is evident that virtually every business now is trying to position itself as being “green”. For a discussion of restrictions on “green advertising”, particularly the FTC’s green ad guidelines (the “Green Guides”), and similar efforts at the state level, see “Green Claims Advertising – What You Can Say and What You Can’t”. The FTC is reviewing the Green Guides and likely will amend them in the near future. For comments submitted in the review process and additional information, see Green Guides.
The newer arena is green trademarks. The United States Patent and Trademark Office is now routinely rejecting, based on descriptiveness, multiword trademarks, that start with or contain the word GREEN. An example is the mark GREEN JOURNEY for hybrid cars. But in the same application, the applicant sought to register for clothing, and the Trademark Office accepted the mark, but with a disclaimer of the word GREEN. It found that the two word mark was merely “suggestive” of clothing, not “descriptive”. See "Green" Trademarks Face Hostile Climate in USPTO.
For an example of a green mark that passed muster, the Trademark Trial and Appeal Board (TTAB) recently reversed an examining attorney’s descriptiveness refusal for the mark GREEN INDIGO for clothing, finding it to be an “incongruous” term for clothing and therefore merely suggestive and not descriptive. The case is In re Jones Investment, Inc. (TTAB Jan. 21, 2009.)
The lesson is: If you want to include the word “GREEN” in a trademark, some careful review and advice from a trademark lawyer is in order.
Want to read more? See “Eco-Friendly Claims Go Unchecked” (USA Today June 22, 2009). The FTC’s brochure “Sorting Out Green Advertising Claims” can be found here.
