Intellectual Property Law

New Matter SPRING 2014, Volume 39, Number 1

Making a Name For Yourself: Trademark Registration Challenges

Shelly Rosenfeld

Lewis Brisbois Bisgaard & Smith

Everything from the Nike slogan, "just do it," to the name, "Coca-Cola," to the design of McDonald’s golden arches has trademark protection. A trademark is a word, name, or symbol that identifies a product in a way that distinguishes it from others, and having a widely recognized trademark is a tremendous asset. Another type of intellectual property, patent, which protects new and useful inventions, is actually issued from the same office, the U.S. Patent and Trademark Office (USPTO). However, when it comes to the race to trademark a name versus obtaining a patent on products having a "racy" topic, they are not on equal footing. The law may not see an invention as patently offensive, but a trademark has to watch its words. In a time when businesses are looking to creatively grab a consumer’s attention, leaving your mark when it comes to vulgarity may actually mean leaving your mark, such that a product is unable to obtain trademark protection from the USPTO. Perhaps one of the strongest cases of "Fowl Language" was In re Fox.1

IN RE FOX

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