Trademark Group Luncheon March, 2011

TM Announcements New version of TBMP due online by end of March Eliminating step of furnishing printed copy of published TM to attorneys/secretaries 2(d) Reports - Amy Phillips

FRAUD??? Applicant filed on BRISTOL for computer systems Applicant had not yet sold any products, had no distributors, representatives, or sales persons, no licensees, and no use of the product. No computer operating system program had been completed, no orders received, and no computer systems bearing the applied-for mark had been shipped. Thus, Applicant's original specimen of use was rejected. Applicant fabricated a specimen and falsely stated that its mark was in use as of the application filing date. TTAB: Opposer has not met its heavy burden of proof to show fraud: –Mr. Bristol, as a layperson, had an honest misunderstanding that the above activities represented a legitimate way to document his purported usage of the adopted term and that applicant had legitimately used the mark Bristol Focus as shown on the substitute specimen. Information Builders, Inc. v. Bristol Technologies, Inc., Opposition No (January 10, 2011) [not precedential].Information Builders, Inc. v. Bristol Technologies, Inc.

I Never Promised You a © Garden! artist Chapman Kelley installed a garden in Chicago's Grant Park. Visual Artists Rights Act gives creators of visual works rights of attribution and integrity. The integrity right enables an artist to stop changes to the work that are "prejudicial to his... honor or reputation" and to seek recovery for unauthorized changes. A garden cant be copyrighted, "a living garden lacks the kind of authorship and stable fixation normally required to support copyright. Chapman Kelley v. Chicago Park District, Nos & (7 th Cir. 2/15/11)

Missing that special sauce? Refusal of JUMPIN' JACKS for barbecue sauce in view of the registered mark JUMPIN JACK'S for catering services - REVERSED. there is no per se rule that restaurant services and food products are related. In order to establish such a likelihood of confusion, the Office "most show something more that that similar or even identical marks are used for food products and for restaurant services. –EA: 3 rd party registrations & websites showing w/ a single mark used for both "barbeque sauce" and "restaurant and catering services," –TTAB: the websites and all but one of the registrations "make clear that the restaurant and catering services specialize in barbecue." The mere fact that some restaurants that specialize in barbeque also provide catering services and sell barbeque sauce is not sufficient to establish a relationship between catering services in general and barbeque sauce. There is no evidence that registrants catering services specialize in barbeque. In re Giovanni Food Co., Inc., Serial No (February 18, 2011) [precedential].

Looks Like A TM, Tastes Like A TM, But IS It TM Use? Only issue litigated was priority. Opposer established a first use date of October 15, Applicant- no evidence of any technical trademark use prior to October 15, Instead, she relied on use analogous to trademark use. –Applicant: magazine articles and advertisements dating back to 1993, a website link in 1996, and evidence of a television appearance in –TTAB: enough to establish use "in a manner analogous to trademark and service mark use as of 1993." Cake Divas v. Charmaine V. Jones, Opposition No (February 23, 2010) [not precedential].