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2-17-17 Roud-Up of Trademark News

Daniel Mills, Trademark Attorney

Posted Friday, February 17, 2017 by Daniel Mills

New England Patriots File for NO DAYS OFF and BLITZ FOR SIX marks.

After their 5th super bowl victory, the New England Patriots have applied for two trademarks inspired by their latest win. The first trademark is BLITZ FOR SIX for both Clothing and Entertainment services namely “providing expert commentary on sports events via the Internet”. BLITZ FOR SIX has a trademark history. The mark was previously registered for clothing and paper goods (posters, bumper stickers) in 2007, but the mark was cancelled in 2014. The record at the USPTO does not show a reason for the cancellation. Later, the mark was allowed in March 2015 for clothing and entertainment services namely “basketball games and exhibitions rendered live in stadia and through the media of radio and television broadcasts”. However, the applicant never filed the required Statement of Use and the application was abandoned.

The NO DAYS OFF application is only for entertainment services namely “providing expert commentary on sports events via the Internet”. Why not clothing, when a “NO DAYS OFF’ hoodie with cut off sleeves seems like an obvious and lucrative item at the Patriots team shop? Because there is a prior pending application for the mark as well as an existing registration for TAKE NO DAYS OFF for Clothing. Despite the popularly held belief that the NFL is omnipotent, a belief most closely held by the league and its teams, there are some battles that they just can’t win. So be on the lookout soon for some kind of internet show featuring “expert commentary” about the Patriots entitled NO DAYS OFF or BLITS FOR SIX.

PJ Fleck Acquires Rights to ROW THE BOAT

In other sports related trademark news, new Minnesota Golden Gopher football coach PJ Fleck reached a deal with his previous school, Western Michigan University, to use the trademark ROW THE BOAT for clothing and sporting events. It appears like it is a licensing agreement in which WMU will still retain ownership and the right to use the mark when recognizing Fleck’s achievement at the University. Fleck will pay WMU $10,000 a year for five years that will be used to endow a scholarship. This is a good move for both parties. The phrase is Fleck’s signature and will always be associated with him. It stems from Fleck’s journey dealing with the death of his infant son in 2011.

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New Proposed 101 Legislation

Jim Ruttler, Patent Attorney

Posted Friday, February 10, 2017 by Jim Ruttler

Anyone following patent law over the past few years is aware of the uncertainty with respect to patent eligibility. The statute is clear that all useful machines, compositions, and processes are eligible, but the Courts have mucked it all up with judicially created exceptions to the rule. It has gotten so bad that it is difficult to know where the lines is for patent eligibility for some life science and computer program inventions.

The IPO has set forth the following proposed claim amendment seeking to eliminate the judicial exceptions once and for all and reset the law on patent eligibility. The brackets indicate removed terms from the present statute in (a). The sections (b) and (c) are completely new.

101 Inventions patentable.

101(a) ELIGIBLE SUBJECT MATTER: Whoever invents or discovers, and claims as an invention, any [[new and]] useful process, machine, manufacture, [[or]] composition of matter, or any [[new and]] useful improvement thereto, shall be entitled to [[thereof, may obtain]] a patent for a claimed invention thereof [[therefor]], subject only to the exceptions, conditions, and requirements set forth in this Title [[of this title]].

101(b) SOLE EXCEPTION TO SUBJECT MATTER ELIGIBILITY: A claimed invention is ineligible under subsection (a) if and only if the claimed invention as a whole, as understood by a person having ordinary skill in the art to which the claimed invention pertains, exists in nature independently of and prior to any human activity, or exists solely in the human mind.

101(c) SOLE ELIGIBILITY STANDARD: The eligibility of a claimed invention under subsections (a) and (b) shall be determined without regard as to the requirements or conditions of sections 102, 103, and 112 of this Title, the manner in which the claimed invention was made or discovered, or the claimed invention’s inventive concept.

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Still No Clear Answers on Director Lee of USPTO

Jim Ruttler, Patent Attorney

Posted Tuesday, January 24, 2017 by Jim Ruttler

Last week there were credible rumors that Michelle Lee was being asked to stay on as the Director of the USPTO. This week there are rumors that this has been reconsidered. Gene Quinn at has been following this story closely. He is reporting that there may be a division within the Trump team about whether to keep Lee or not. There are apparently some people that are close to Lee and Trump and who are advocating for her continued leadership at the USPTO. However, there are apparently some very loud voices within the Trump team that are advocating for a clear break from Obama’s appointees.

Most patent owners would agree that Michelle Lee is not good for patents. The only people that do advocate her continued role are those that want patents to be easier to invalidate and less valuable.

My hope and that of most patent attorneys and patent owners is that Trump will choose a new candidate that can bring clarity and value back to patents. This will encourage more investment and produce more high quality jobs.

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Director Lee Staying on Under Trump?

Jim Ruttler, Patent Attorney

Posted Thursday, January 19, 2017 by Jim Ruttler

Breaking news is being reported by IPWatchdog and PatentlyO that current Patent Office Director Michelle Lee will be staying on under President Trump. This is quite a surprise by many in the patent community who expected Trump to choose another person to fill the job of running the Patent Office.

There is no information yet as to how long Lee may stay on as it may be a temporary transition until Trump can find another candidate.

My hope and belief is that Director Lee will adopt a more conservative and stronger view of patents under Trump.

More information to come as soon as it is available.

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2016 TTAB Decisions Reaffirm Need for Good Searching in Beginning

Daniel Mills, Trademark Attorney

Posted Thursday, January 12, 2017 by Daniel Mills

My favorite trademark blog The TTAB Blog, created by John L. Welch, has compiled the results of the 2016 TTAB decisions in appeals covering the two most common reasons trademarks are refused - likelihood of confusion and mere descriptiveness.

For section 2(d) likelihood of confusion refusals, Mr. Welch counted 249 refusals. Of those, 228 were affirmed and only 21 were reversed. That is 91.5%.

For Section 2(e)(1) merely descriptive the numbers were similar. 91 refusals of which 82 were affirmed and only 9 reversed. That is 90.1%.

The most significant idea these numbers tell me for my practice and how I counsel my clients is that search is more important than ever when deciding on a new trademark or brand. Search is as much art as it is science, and even the best search is not 100%, but a good search for confusion and a thorough understanding of the descriptiveness standards allow me to help clients avoid these potential refusals. The only sure way to beat a refusal is to not get one in the first place.

This can be a frustrating experience for both attorney and clients, because many times the top choice(s) of clients are often eliminated immediately with a knockout search. The client must go back to the drawing board to come up with another choice, or in some cases dozens of choices. However, frustrating it may be, the time spent up front is a wise investment. The old adage about prevention and cure are true. A little time and money spent at the beginning can save a lot of money and headache down the road.

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