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The volume of trademark application filings at the USPTO continues to rise steadily. Filings in the first 3 months of 2016 are up at least 3% over the same time period from last year.

  • First 3 months of 2016: 94,044 new applications filed
  • First 3 months of 2015: 91,153 new applications filed (note that when searched in April of 2015, this number was 86,628 which suggested the growth is even larger)
  • First 3 months of 2014: 84,472 new applications filed
  • First 3 months of 2013: 80,591 new applications filed
  • Last 3 months of 2014: 81,246 new applications filed

[Note: All data retrieved via TESS search on USPTO.gov on April 10, 2016]

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Yesterday at the Spring IP conference of the ABA Section of Intellectual Property Law, following a live hearing of a TTAB cancellation case, Chief Administrative Law Judge Rogers provided a summary of the recently proposed rules changes.

The proposed rulemaking was made public on Monday. Comments to the TTAB are due by June 3, 2016.

The proposed changes are, in my opinion, significant in several ways. They aim to streamline cases to make them a bit less complex and less costly for the parties involved. While generally that would be a admirable goal, and one that could benefit small businesses in particular, my concern is whether it runs contrary to the guidance provided by the Supreme Court last year in B&B Hardware, Inc. v. Hargis Industries, Inc.135 S. Ct. 1293 (2015)The Supreme Court said that  TTAB proceedings have a preclusive effect in later District Court actions when the proper conditions are met. The guidance from the Supreme Court leads me to believe that a preclusive effect could be found in many TTAB cases. For example, the oral hearing that the Board heard yesterday at the conference involved possible cancellation of a registration, and included extensive evidence (including depositions) and arguments regarding sales, advertising, consumers, channels of trade, actual confusion, and more. In short, the case covered essentially all of the same ground that an infringement matter would cover. Simplifying the procedure for the case could effect the chances of a full and fair adjudication of the merits.

It will be interesting to see the nature of the comments from practitioners, bar associations, and other stakeholders in response to the proposed rulemaking.

The TTAB’s summary of the major changes, distributed at the conference, is below. 

The full rulemaking can be found at https://www.federalregister.gov/articles/2016/04/04/2016-06672/miscellaneous-changes-to-trademark-trial-and-appeal-board-rules-of-practice.

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Virgin America reportedly is for sale and may be acquired by another airline soon. That will be a shame, the Virgin America brand is tremendous. It has a distinctive feel, and it is fun. In fact, their own branding guide describes the message this way: The ideal tone is hip, easygoing, informal, playful and tongue in cheek. The brand has a fresh color palette for airlines (not red, white, and blue) and even the lighting they use (see below) is distinctive. I have written before that the lighting could likely be registered and protected as a non-traditional trademark.

Their member program is called “elevate,” a creative brand name that plays into the status, rewards, and upgrades that are so important to airline users. The slogan “Breath of fresh airline is also fun and creative.

And the brand has fun. For example, on April fools’ day last week, the airline announced a “new” logo that looks like a bra. Don’t worry, that is not really their new logo below.
I don’t love everything about the “Virgin” brands – in particular they very aggressively enforce the name against anyone seeking to use the word “virgin” in nearly any brand name context – but the airline brand stands out as unique and different. If it is subsumed by another airline, it will be missed.

Yet another scam targeting owners of trademark registrations. This one looks like so many that we have already seen over the last few years. It is from IPTI – International Patent & Trademark Index. For just $2,356 they will register your trademark their database. I have never heard of their database, their database is not complete, and I have never once heard a trademark professional refer to their database as a resource.

Will the USPTO, TPAC, the Department of Justice, the Small Business Administration, the Federal Trademark Commission, the Department of Commerce, or the U.S. Postal Service ever get serious about stopping these scam solicitations and prosecuting the offenders?

WIPO also appears to feature a warning about IPTI, but the USPTO page has no details on them.

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I am honored to have written Chapter One in the newly published book from the American Bar Association, A Legal Strategist’s Guide to Trademark Trial and Appeal Board Practice. The book covers the entire TTAB Opposition and Cancellation process, as well as Ex Parte Appeals, and is a true practitioner’s guide to the rules and procedures of the TTAB.

Chapter One (Inter Partes Matters: General Background and Prefiling Considerations) by yours truly is available for now as a free sample on the publishers website, where the entire book can be purchased:

http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=233249703

Jonathan Hudis has edited this wonderful resource that features many other excellent authors, and I am thankful to Jonathan and the ABA Section of Intellectual Property Law for the opportunity to contribute to this work.FullSizeRender

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