The owner of a trademark used in commerce may request registration of its trademark on the principal register ... 15 USC § 1051
...As we will soon see, "used in commerce" is a critically important term that is often misunderstood....
Friday, June 26, 2015
Use In Commerce (Introduction)
by Steve Reiss of www.reisspatents.com
...As we will soon see, "used in commerce" is a critically important term that is often misunderstood....
...As we will soon see, "used in commerce" is a critically important term that is often misunderstood....
Wednesday, June 10, 2015
More on Old USPTO Rule 17
by Steve Reiss of www.reisspatents.com
Any person of intelligence and good moral character may appear as the agent or the attorney in fact of an applicant, upon filing a proper power of attorney. As the value of patents depends largely upon the careful preparation of the specifications and claims, the assistance of competent counsel will, in most cases, be of advantage to the applicant; but the value of their services will be proportionate to their skill and honesty, and too much can: cannot be exercised in their selection. The office cannot assume responsibility for the acts of attorneys, nor can it assist applicants in making selections. It will, however, be unsafe to trust those who pretend to the possession of any facilities except capacity and diligence for procuring patents in a shorter time or with broader claims than others.
Laws of Patents, Trademarks, and Copyrights: Circa 1880s or so.
Any person of intelligence and good moral character may appear as the agent or the attorney in fact of an applicant, upon filing a proper power of attorney. As the value of patents depends largely upon the careful preparation of the specifications and claims, the assistance of competent counsel will, in most cases, be of advantage to the applicant; but the value of their services will be proportionate to their skill and honesty, and too much can: cannot be exercised in their selection. The office cannot assume responsibility for the acts of attorneys, nor can it assist applicants in making selections. It will, however, be unsafe to trust those who pretend to the possession of any facilities except capacity and diligence for procuring patents in a shorter time or with broader claims than others.
Laws of Patents, Trademarks, and Copyrights: Circa 1880s or so.
On "Chewy Vitton" and Parody
by Steve Reiss of www.reisspatents.com
For
trademark purposes, "[a] 'parody' is defined as a simple form of
entertainment conveyed by juxtaposing the irreverent representation of
the trademark with the idealized image created by the mark's owner." People for the Ethical Treatment of Animals v. Doughney ("PETA"), 263 F.3d 359, 366 (4th Cir. 2001) (internal quotation marks omitted). "A parody must convey two simultaneous -- and contradictory -- messages: that it is the original, but also that it is not the original and is instead a parody." Id.
(internal quotation marks and citation omitted). This second message
must not only differentiate the alleged parody from the original but
must also communicate some articulable element of satire, ridicule,
joking, or amusement. Thus,
"[a] parody relies upon a difference from the original mark, presumably
a humorous difference, in order to produce its desired effect." Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1486 (10th Cir. 1987) (finding the use of "Lardashe" jeans for larger women to be a successful and permissible parody of "Jordache" jeans).
When applying the PETA criteria to the facts of this case, we agree with the district court that the "Chewy Vuiton" dog toys are successful parodies of LVM handbags and the LVM marks and trade dress used in connection with the marketing and sale of those handbags. First, the pet chew toy is obviously an irreverent, and indeed intentional, representation of an LVM handbag, albeit much smaller and coarser. The dog toy is shaped roughly like a handbag; its name "Chewy Vuiton" sounds like and rhymes with LOUIS VUITTON; its monogram CV mimics LVM's LV mark; the repetitious design clearly imitates the design on the LVM handbag; and the coloring is similar. In short, the dog toy is a small, plush imitation of an LVM handbag carried by women, which invokes the marks and design of the handbag, albeit irreverently and incompletely. No one can doubt that LVM handbags are the target of the imitation by Haute Diggity Dog's "Chewy Vuiton" dog toys.
At the same time, no one can doubt also that the "Chewy Vuiton" dog toy is not the "idealized image" of the mark created by LVM. The differences are immediate, beginning with the fact that the "Chewy Vuiton" product is a dog toy, not an expensive, luxury LOUIS VUITTON handbag. The toy is smaller, it is plush, and virtually all of its designs differ. Thus, "Chewy Vuiton" is not LOUIS VUITTON ("Chewy" is not "LOUIS" and "Vuiton" is not "VUITTON," with its two Ts); CV is not LV; the designs on the dog toy are simplified and crude, not detailed and distinguished. The toys are inexpensive; the handbags are expensive and marketed to be expensive. And, of course, as a dog toy, one must buy it with pet supplies and cannot buy it at an exclusive LVM store or boutique within a department store. In short, the Haute Diggity Dog "Chewy Vuiton" dog toy undoubtedly and deliberately conjures up the famous LVM marks and trade dress, but at the same time, it communicates that it is not the LVM product.
Finally, the juxtaposition of the similar and dissimilar -- the irreverent representation and the idealized image of an LVM handbag -- immediately conveys a joking [261] and amusing parody. The furry little "Chewy Vuiton" imitation, as something to be chewed by a dog, pokes fun at the elegance and expensiveness of a LOUIS VUITTON handbag, which must not be chewed by a dog. The LVM handbag is provided for the most elegant and well-to-do celebrity, to proudly display to the public and the press, whereas the imitation "Chewy Vuiton" "handbag" is designed to mock the celebrity and be used by a dog. The dog toy irreverently presents haute couture as an object for casual canine destruction. The satire is unmistakable. The dog toy is a comment on the rich and famous, on the LOUIS VUITTON name and related marks, and on conspicuous consumption in general. This parody is enhanced by the fact that "Chewy Vuiton" dog toys are sold with similar parodies of other famous and expensive brands -- "Chewnel No. 5" targeting "Chanel No. 5"; "Dog Perignonn" targeting "Dom Perignon"; and "Sniffany & Co." targeting "Tiffany & Co."
We conclude that the PETA criteria are amply satisfied in this case and that the "Chewy Vuiton" dog toys convey "just enough of the original design to allow the consumer to appreciate the point of parody," but stop well short of appropriating the entire marks that LVM claims. PETA, 263 F.3d at 366 (quoting Jordache, 828 F.2d at 1486).
Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 260-261 (4th Cir. Va. 2007)
When applying the PETA criteria to the facts of this case, we agree with the district court that the "Chewy Vuiton" dog toys are successful parodies of LVM handbags and the LVM marks and trade dress used in connection with the marketing and sale of those handbags. First, the pet chew toy is obviously an irreverent, and indeed intentional, representation of an LVM handbag, albeit much smaller and coarser. The dog toy is shaped roughly like a handbag; its name "Chewy Vuiton" sounds like and rhymes with LOUIS VUITTON; its monogram CV mimics LVM's LV mark; the repetitious design clearly imitates the design on the LVM handbag; and the coloring is similar. In short, the dog toy is a small, plush imitation of an LVM handbag carried by women, which invokes the marks and design of the handbag, albeit irreverently and incompletely. No one can doubt that LVM handbags are the target of the imitation by Haute Diggity Dog's "Chewy Vuiton" dog toys.
At the same time, no one can doubt also that the "Chewy Vuiton" dog toy is not the "idealized image" of the mark created by LVM. The differences are immediate, beginning with the fact that the "Chewy Vuiton" product is a dog toy, not an expensive, luxury LOUIS VUITTON handbag. The toy is smaller, it is plush, and virtually all of its designs differ. Thus, "Chewy Vuiton" is not LOUIS VUITTON ("Chewy" is not "LOUIS" and "Vuiton" is not "VUITTON," with its two Ts); CV is not LV; the designs on the dog toy are simplified and crude, not detailed and distinguished. The toys are inexpensive; the handbags are expensive and marketed to be expensive. And, of course, as a dog toy, one must buy it with pet supplies and cannot buy it at an exclusive LVM store or boutique within a department store. In short, the Haute Diggity Dog "Chewy Vuiton" dog toy undoubtedly and deliberately conjures up the famous LVM marks and trade dress, but at the same time, it communicates that it is not the LVM product.
Finally, the juxtaposition of the similar and dissimilar -- the irreverent representation and the idealized image of an LVM handbag -- immediately conveys a joking [261] and amusing parody. The furry little "Chewy Vuiton" imitation, as something to be chewed by a dog, pokes fun at the elegance and expensiveness of a LOUIS VUITTON handbag, which must not be chewed by a dog. The LVM handbag is provided for the most elegant and well-to-do celebrity, to proudly display to the public and the press, whereas the imitation "Chewy Vuiton" "handbag" is designed to mock the celebrity and be used by a dog. The dog toy irreverently presents haute couture as an object for casual canine destruction. The satire is unmistakable. The dog toy is a comment on the rich and famous, on the LOUIS VUITTON name and related marks, and on conspicuous consumption in general. This parody is enhanced by the fact that "Chewy Vuiton" dog toys are sold with similar parodies of other famous and expensive brands -- "Chewnel No. 5" targeting "Chanel No. 5"; "Dog Perignonn" targeting "Dom Perignon"; and "Sniffany & Co." targeting "Tiffany & Co."
We conclude that the PETA criteria are amply satisfied in this case and that the "Chewy Vuiton" dog toys convey "just enough of the original design to allow the consumer to appreciate the point of parody," but stop well short of appropriating the entire marks that LVM claims. PETA, 263 F.3d at 366 (quoting Jordache, 828 F.2d at 1486).
Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 260-261 (4th Cir. Va. 2007)
ON THE AMERICA INVENT ACT
by Steve Reiss
"US Patents have lost 2/3rds of their value since the AIA was passed in 2011.”
Scott Bechtel of AmiCOUR IP Group, an experienced patent broker. In the two and a half years since the first IPR was filed, 77% of all patent claims reviewed have been invalidated.
US Patent and Trademark Office, “Inter Partes Review Petitions Terminated to Date (as of 1/15/2015)”
Information from : http://patentlyo.com/patent/2015/06/america-invents-trillion.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+PatentlyO+%28Dennis+Crouch%27s+Patently-O%29
"US Patents have lost 2/3rds of their value since the AIA was passed in 2011.”
Scott Bechtel of AmiCOUR IP Group, an experienced patent broker. In the two and a half years since the first IPR was filed, 77% of all patent claims reviewed have been invalidated.
US Patent and Trademark Office, “Inter Partes Review Petitions Terminated to Date (as of 1/15/2015)”
Information from : http://patentlyo.com/patent/2015/06/america-invents-trillion.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+PatentlyO+%28Dennis+Crouch%27s+Patently-O%29
On the America Invent Act
by Steve Reiss of www.reisspatents.com
“US Patents have lost 2/3rds of their value since the AIA was passed in 2011.”
Scott Bechtel of AmiCOUR IP Group, an experienced patent broker.
In the two and a half years since the first IPR was filed, 77% of all patent claims reviewed have been invalidated.
US Patent and Trademark Office, “Inter Partes Review Petitions Terminated to Date (as of 1/15/2015)”
Information from : http://patentlyo.com/patent/2015/06/america-invents-trillion.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+PatentlyO+%28Dennis+Crouch%27s+Patently-O%29
“US Patents have lost 2/3rds of their value since the AIA was passed in 2011.”
Scott Bechtel of AmiCOUR IP Group, an experienced patent broker.
In the two and a half years since the first IPR was filed, 77% of all patent claims reviewed have been invalidated.
US Patent and Trademark Office, “Inter Partes Review Petitions Terminated to Date (as of 1/15/2015)”
Information from : http://patentlyo.com/patent/2015/06/america-invents-trillion.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+PatentlyO+%28Dennis+Crouch%27s+Patently-O%29
***
Monday, June 8, 2015
Buttwiper v. Budweiser
by Steve Reiss of www.reisspatents.com
Defendant is the owner and operator of VIP, which creates, manufactures, and sells high quality, durable dog toys. VIP sells three brands of dog toys: "Tuffy," "Mighty," and "Silly Squeakers." "Buttwiper" is with the "Silly Squeakers" brand. VIP's dog toys are high-end and cost more than most, if not all, other dog squeeze toys on the market. "Silly Squeakers's" first squeeze toy was a two-headed object called "Mr. Poop." "Buttwiper" and "Cataroma" -- packaged with "Buttwiper" -- were created to augment "Mr. Poop."
The idea for "Buttwiper" came from a Stanley Steamer commercial in which a dog scoots across the floor while rubbing its bottom on the carpet. The reaction of the mother to the dog's actions suggests that the carpet will now need to be cleaned. This scooting action is depicted on the label of the "Buttwiper" squeeze toy. Mr. Sacra directed a graphic designer to "make a knock-off of a beer bottle label" for "Budweiser"/"Buttwiper."
The Court finds that all four factors weigh in favor of granting Plaintiff's motion for preliminary injunction on its claims for trademark infringement and unfair competition.
There is testimony that the dog on the "Buttwiper" toy is suffering from some unsavory condition affecting its anal glands. There is also an opinion by an employee of Plaintiff that the line following the dog drawing is a feces mark. There is, however, no evidence that "Buttwiper" has harmed the reputation of "Budweiser." The dilution by tarnishment claim will not support a preliminary injunction under federal law.
Anheuser-Busch, Inc. v. VIP Prods., LLC, 666 F. Supp. 2d 974, 980 (E.D. Mo. 2008).
Defendant is the owner and operator of VIP, which creates, manufactures, and sells high quality, durable dog toys. VIP sells three brands of dog toys: "Tuffy," "Mighty," and "Silly Squeakers." "Buttwiper" is with the "Silly Squeakers" brand. VIP's dog toys are high-end and cost more than most, if not all, other dog squeeze toys on the market. "Silly Squeakers's" first squeeze toy was a two-headed object called "Mr. Poop." "Buttwiper" and "Cataroma" -- packaged with "Buttwiper" -- were created to augment "Mr. Poop."
The idea for "Buttwiper" came from a Stanley Steamer commercial in which a dog scoots across the floor while rubbing its bottom on the carpet. The reaction of the mother to the dog's actions suggests that the carpet will now need to be cleaned. This scooting action is depicted on the label of the "Buttwiper" squeeze toy. Mr. Sacra directed a graphic designer to "make a knock-off of a beer bottle label" for "Budweiser"/"Buttwiper."
The Court finds that all four factors weigh in favor of granting Plaintiff's motion for preliminary injunction on its claims for trademark infringement and unfair competition.
There is testimony that the dog on the "Buttwiper" toy is suffering from some unsavory condition affecting its anal glands. There is also an opinion by an employee of Plaintiff that the line following the dog drawing is a feces mark. There is, however, no evidence that "Buttwiper" has harmed the reputation of "Budweiser." The dilution by tarnishment claim will not support a preliminary injunction under federal law.
Anheuser-Busch, Inc. v. VIP Prods., LLC, 666 F. Supp. 2d 974, 980 (E.D. Mo. 2008).
Wednesday, June 3, 2015
Was the First US Patent, US Patent No. 1?.
by Steve Reiss of www.reisspatents.com
A commonly asked patent trivia question is what was the first US patent granted for? Another question is what was US Patent No.1 granted for?
Actually, these similarly sounding questions have very different answers.
The first patent ever granted was on July 31, 1790 to Mr. Samuel Hopkins, of Philadelphia, PA. The invention described in the patent was for Potash (an impure form of potassium carbonate). This patent was granted under the Patent Act of 1790, which did not provide for patent numbers. The Patent Act of 1790 also did not provide for a "Patent Office". Rather, a committee of the Secretary of State, Secretary of War and the Attorney General were authorized to make a decision on the merit of a properly documented petition. Hopkins' patent was signed by President George Washington, Attorney General Edmund Randolph, and Secretary of State Thomas Jefferson.
The "X" number was not part of the original document. For more information on the X-series of US patents (1790-1836), see this article on X-patents.
US Patent No. 1 was granted to on July 13, 1836 to Mr. John Ruggles, of Maine. The invention described in the patent was for a traction wheel. This patent was granted under the Patent Act of 1836, under which, the numbering of patents was started. Coincidentally or conspiratorially, John Ruggles was a US senator at this time and Chairman of the Committee On Patents for the 25th Congress, which enacted the Patent Act of 1836.
A commonly asked patent trivia question is what was the first US patent granted for? Another question is what was US Patent No.1 granted for?
Actually, these similarly sounding questions have very different answers.
The first patent ever granted was on July 31, 1790 to Mr. Samuel Hopkins, of Philadelphia, PA. The invention described in the patent was for Potash (an impure form of potassium carbonate). This patent was granted under the Patent Act of 1790, which did not provide for patent numbers. The Patent Act of 1790 also did not provide for a "Patent Office". Rather, a committee of the Secretary of State, Secretary of War and the Attorney General were authorized to make a decision on the merit of a properly documented petition. Hopkins' patent was signed by President George Washington, Attorney General Edmund Randolph, and Secretary of State Thomas Jefferson.
 |
| The First US Patent |
US Patent No. 1 was granted to on July 13, 1836 to Mr. John Ruggles, of Maine. The invention described in the patent was for a traction wheel. This patent was granted under the Patent Act of 1836, under which, the numbering of patents was started. Coincidentally or conspiratorially, John Ruggles was a US senator at this time and Chairman of the Committee On Patents for the 25th Congress, which enacted the Patent Act of 1836.
 |
| US Patent Number 1 |
**
Tuesday, June 2, 2015
Solving the Problem of the Skanky Open Dog Food Can
by Steve Reiss of www.reisspatents.com.
I hate everything about canned dog food; from opening the can, to spooning it out, to its horrendous smell. So it was fantastic that today I had the pleasure to feed Miss Josie.
I guess I am not the only one that hates the can, because on November 17, 1987, Mr. Michael C. Ryan received US Patent No. 4,706,849 for "Device for dispensing a pet food from a sealed can container therefor."
In the patent, Mr. Ryan says:
If you have any questions about whether any pet-related (or any other)
ideas you may have are patentable, feel free to reach out to me at www.reisspatents.com.
I hate everything about canned dog food; from opening the can, to spooning it out, to its horrendous smell. So it was fantastic that today I had the pleasure to feed Miss Josie.
I guess I am not the only one that hates the can, because on November 17, 1987, Mr. Michael C. Ryan received US Patent No. 4,706,849 for "Device for dispensing a pet food from a sealed can container therefor."
In the patent, Mr. Ryan says:
In a feeding operation, one end of the can is opened and the pet food removed by a spoon or the like for placement into a feeding dish. Since pet foods tend to have an objectionable odor and a tendency to cling to the spoon and inner wall of the can, storage of the open can and spoon creates odor problems. Additionally, when only a portion of the material in the can is fed, the feeding of following portions is not only messy and inconvenient but care must be exercised to avoid injury from sharp surfaces that may be at the open end of the can. These disadvantages in the feeding of animal pets are substantially avoided by the dispensing device of this invention.
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