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Category: Trademark

Trademark Specimen for Clothing

Commonly, unrepresented applicants registering marks for apparel in International Class 25 will submit pictures of their mark across the front of a shirt as a Trademark Specimen for Clothing. This could be a word, phrase, slogan, or design they wish to popularize and market for apparel. However, even though these could be eligible for trademark protection in this class, the specimen submitted to the USPTO must feature the mark in a manner that is source indicative. Large screen printed or embroidered text or designs on the front of garments rarely meet this exacting standard. The USPTO may refuse a specimen for being “merely ornamental” or a “decorative feature.”


Trademark Specimen for Clothing

In order to register any mark with the USPTO, you must submit a trademark specimen  for clothing of how you actually use the mark in commerce. More often than not, this means a picture of the goods as they are sold or the services as they appear to the customer.

Ornamental Refusal – A common mistake when submitting specimen for apparel or clothing trademarks.

Here are some tips to ensure your trademark specimen  for clothing will be accepted by the US Patent & Trademark Office:

  • If placing the mark on the outside of the garment, it should go where would expect to see other brand’s marks, like the pocket, breast area, or sleeve and keep it small and neat. Most athletic polo and golf shirts offer great examples.
  • Many places inside the garment will be adequate. Silk tags and “tagless” under-collar screen-printing are usually acceptable locations.
  • Anything detachable from the garment, like plastic or cellophane wrapping, boxes, or hang-tags usually qualify.
  • Though not ideal, sometimes featuring the mark along with the goods in an online store can function as a source indicator.

If you’ve already received an ornamental refusal for your apparel trademark application, it’s not too late to fix your mistake. Since you’ll need to prepare important documents and critical dates and evidence are crucial to proving your case, it may be time to hire a trademark attorney. If you’d like our help or have any questions before filing, please call

By Richard Piercy Patent & Trademark Attorney.

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Can You Trademark a Hashtag?

Conclusion: Trademark rules apply. If a mark consists of the hash symbol or the term HASHTAG combined with wording that is merely descriptive or generic for the goods or services, the entire mark must be refused as merely descriptive or generic. Also trademark must functions as an identifier of the source of the applicant’s goods or services, if not then not trademarkable.

Is a Hashtag something you can Trademark?

Background: Originally developed on Twitter, a hashtag is a word or a phrase following the pound sign “#phrase” used to categorize messages on social media relating to a specific topic the phrase. Hashtags have become an important aspect of social media.  Their presence can be seen on social media platforms such as Facebook, Instagram, YouTube, Pinterest and more.

Hashtag

Hashtags function like a search key word and when searched will produce all messages and photos tagged with the #hashtag.  Hashtags are used by individuals, celebrities, politicians, companies, television shows, radio shows, podcasts, YouTube channels and more to gather messages together under a specific topic the phrase. Consumers can use them to rate products or services and even to promote a product, service, or business.

Law: According to the Trademark Manual of Examining Procedure, a “hashtag” is a form of metadata consisting of a word or phrase prefixed with the symbol “#” (e.g., #chicago, #sewing, and #supremecourtdecisions). Hashtags are often used on social-networking sites to identify or facilitate a search for a keyword or topic of interest. See Dictionary.com, search of “hashtag,” http://dictionary.reference.com/browse/hashtag (June 19, 2013) (citing Random House Dictionary). A mark consisting of or containing the hash symbol (#) or the term HASHTAG is registrable as a trademark or service mark only if it functions as an identifier of the source of the applicant’s goods or services. Generally, the hash symbol and the wording HASHTAG do not provide any source-indicating function because they merely facilitate categorization and searching within online social media (i.e., social-media participants are directed to search a particular subject. 

A place to search other Hashtags to see if anyone is using your proposed Hashtag is http://twubs.com/

 Please contact a US trademark attorney at Grell & Watson 678-383-4886

USPTO Satellite Offices

USPTO Satellite Offices – Coming Soon To a Time Zone Near You

 

December 2014

Patent Case Summaries

Patent, Trademark and Copyright Cases To Watch In 2015

Patent, Trademark and Copyright Cases To Watch In 2015

Patent Cases To Watch In 2015

The U.S. Supreme Court will decide three patent cases involving claim construction, induced infringement and patent royalties in 2015, while the Federal Circuit grapples with the fallout from the high court’s recent patent-eligibility rulings and the standards for America Invents Act reviews.

Patent Legislation To Watch In 2015

After a bill aimed at cracking down on so-called patent trolls stalled in Congress last year, attorneys expect lawmakers to make a major push to enact legislation on the issue in the coming months, and also possibly weigh measures to clarify patent eligibility and extend the life of some drug patents.

Copyright And Trademark Cases To Watch In 2015

The worlds of copyright and trademark law are going to be anything but soft in 2015, with two trademark cases pending before the U.S. Supreme Court, a showdown between Google and Oracle over software copyrights looming, and more.

Fed. Circ. To Weigh Patent Impact Of ‘Raging Bull’

The Federal Circuit will consider whether the U.S. Supreme Court’s “Raging Bull” decision limiting laches as a defense in copyright cases applies equally to patent law, agreeing to conduct an en banc rehearing of its decision that an adult diaper patent suit was barred by laches because the patent owner waited too long to file suit.

Motorola Urges 9th Circ. To Overturn Landmark RAND Ruling

Motorola Inc. has hit back at Microsoft Corp.’s attempts to kill Motorola’s Ninth Circuit appeal of a decision that Motorola had breached an obligation to license its standard-essential patents to Microsoft on fair terms, saying that Microsoft is trying to evade infringement liability by hiding behind a breach-of-contract suit.

PATENTS

PTAB Says Filing Misstep Dooms Movie Studios’ AIA Bids

The Patent Trial and Appeal Board has rejected petitions by Paramount Pictures Corp. and other Hollywood studios seeking inter partes review of two DVD patents owned by Nissim Corp., ruling that the petitions failed to list all of the interested parties in the dispute.

DC Circ. Voids $200M Judgment In Cuba Torture Row

The D.C. Circuit has refused to let a man who was allegedly tortured while incarcerated in Cuba in the early 1970s execute a $200 million default judgment upon patents and trademark registrations issued to nearly two dozen Cuban research institutes and enterprises, voiding the judgment.

Nexium Buyers Seek New Trial In Pay-For-Delay Case

A group of Nexium buyers has asked a Massachusetts federal court for a new trial over antitrust claims that AstraZeneca PLC and Ranbaxy Inc. used a patent settlement to delay the launch of a cheaper generic version of the heartburn treatment.

NY AG Says Actavis Can’t Suspend Antitrust Injunction

The New York attorney general has urged the Second Circuit to deny Actavis PLC’s bid to hit the brakes on an injunction that prevents it from halting sales of immediate-release dementia drug Namenda while the drugmaker pursues an appeal in the antitrust case, saying patients would be irreparably harmed.

COPYRIGHTS & TRADEMARKS

Turtles Say It’s Game Over For Sirius’ ‘Fictional Analysis’

Three weeks after a New York federal refused to reverse her ruling that Sirius XM needs to pay to play pre-1972 records, the band that’s suing the satcaster is urging her to grant it full victory in the case.

9th Circ. Overturns ‘Pom’ Trademark Ruling

The Ninth Circuit this week vacated a lower court’s decision to deny Pom Wonderful LLC a preliminary injunction blocking the sale of a “pur pom” energy drink, saying the trial judge botched the likelihood of confusion analysis.

Google Pushes High Court To Take Up Java Copyright Row

Google Inc. recently told the U.S. Supreme Court that it isn’t trying to undermine copyright protection for all computer code in its battle with Oracle Corp. over the use of its Java programming language, saying only certain parts of the language aren’t copyright-eligible.

Shopping App Maker InMarket Ducks Injunction Bid In TM Suit

A New York federal judge has denied a request by Berkley Networks Corp. to bar rival InMarket Media LLC from using the “inMarket” trademark for its shopping discount app for smartphones, ruling that Berkley Networks can’t get swift court action after years of “lassitude.”

Q1 2014 Closing Dates of the USPTO

Closing of the USPTO on
February 13, 2014      http://www.uspto.gov/web/offices/com/sol/og/2014/week19/TOC.htm#ref11
March 3, 2014            http://www.uspto.gov/web/offices/com/sol/og/2014/week19/TOC.htm#ref12
March 17, 2014          http://www.uspto.gov/web/offices/com/sol/og/2014/week19/TOC.htm#ref13

US Patent and Trademark Office News 4-1-2014

Edition 9 of the Manual of Patent Examining Procedure (MPEP) has been released http://mpep.uspto.gov/RDMS/detail/manual/MPEP/current/d0e18.xml

USPTO Launches New Glossary Pilot Program to Promote Patent Claim Clarity
http://www.uspto.gov/news/pr/2014/14-08.jsp
http://www.gpo.gov/fdsys/pkg/FR-2014-03-27/pdf/2014-06792.pdf

New landing page on the USPTO website devoted to third-party preissuance patent submissions
http://www.uspto.gov/patents/init_events/preissuance_submissions.jsp

Copyright Office Announces New Fee Schedule; First Since 2009 http://www.copyright.gov/fedreg/2014/79fr15910.pdf