By Jeffrey C. Norris, Partner, Standley Law Group LLP

As a Cincinnati Reds fan, I took notice of the Trademark Office rejecting a trademark application for CUBNOXIOUS on May 3, 2019. Ronald Mark Huber (Applicant) had filed a trademark application regarding his intent to use CUBNOXIOUS for shirts. The examining attorney did not initially find any likelihood of confusion with any other marks, and the application proceeded to the publication period, which allows for the public to oppose the registration of the mark. The Chicago Cubs Baseball Club, LLC, which owns the trademarks related to the Chicago Cubs, opposed the application.

For a first opposition ground, the Chicago Cubs Baseball Club, LLC (Opposer) alleged that Applicant did not have a bona fide intent to use the mark in commerce when he filed the application. The Appeal Board found that Applicant did not produce satisfactory evidence to show bona fide intent to use the mark at the time of filing, and that the evidence instead suggested that the application was filed merely to reserve a right for potential future use of the mark, which still had not been made. The Appeal Board therefore determined that the application was void ab initio.

Opposer further opposed on the basis that there would be a likelihood of confusion with their registered marks. As part of the consideration of the factors bearing on a likelihood of confusion, the Appeal Board assessed the similarity of the marks. Although obnoxious is often not a complimentary term, Opposer argued that many of its fan base would consider the term to be a badge of honor, and therefore maintained that the mark fits within its merchandising program. The Appeal Board concluded that confusion was indeed likely because the goods would move in the same channels of trade to the same classes of consumers.

On the other hand, after game two of the NBA finals, Kawhi Leonard hit Nike Inc. with an intellectual property lawsuit. Leonard seeks an injunction against Nike regarding a logo that he allegedly made by tracing his hand. The logo also includes his initials and his jersey number. Leonard maintains that he began developing the logo while still in college, and that he subsequently allowed Nike to use the logo while under contract with the retailer. However, Leonard claims that Nike improperly filed a copyright application for the logo without his knowledge or identification as an author. The contract has since expired, and Leonard and Nike have squared off regarding the right to use the mark. With the Raptors currently up 3-1 in the Finals, each side surely desires to use the mark to capitalize on a potential NBA championship.

Finally, beer giants, MillerCoors, LLC and Anheuser-Busch Companies, LLC, are engaged in a false advertisement dispute. In the Bud Light advertisement campaign, claims are made that Miller Lite and Coors Light are “made with” or “brewed with” corn syrup. MillerCoors, LLC claims that corn syrup is only used to aid in the fermentation process, and that there is no corn syrup in the finished products. MillerCoors, LLC asserts that the advertisements deceive consumers into believing that the finished products contain corn syrup, particularly high fructose corn syrup. Anheuser-Busch Companies, LLC counters that the advertisements are true. In an Order dated May 24, 2019, the preliminary injunction motion of MillerCoors, LLC was granted in part and denied in part. The district court preliminarily enjoined Anheuser-Busch Companies, LLC from using the following language in its advertisements: 1) Bud Light contains “100% less corn syrup”; 2) direct reference to “no corn syrup” in Bud Light without further reference to “brewed with”, “made with”, or “uses”; 3) reference to Miller Lite or Coors Light and “corn syrup” without further reference to “brewed with”, “made with”, or “uses”; and 4) describing “corn syrup” as being “in” the finished product. The motion to dismiss of Anheuser-Busch Companies, LLC was denied. It is likely that we have not heard the end of this dispute.

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