Q: Can a sobriquet be a trademark?
A: It can, as long as it’s being used as a trademark to sell something: T-shirts, public speaking services, action figures, entertainment services, etc.
Wile E. Coyote before he struck it big.
- Shakespeare, if he were alive, could register THE BARD OF AVON for playwrighting services.
- Wile E. Coyote, if he were real, could register SUPER GENIUS for roadrunner catching services. (I would absolutely do that legal work pro bono.)
Turning from the hypothetical to the real:
- Harpo, Inc. owns multiple trademark registrations containing OPRAH for, among other things, educational and entertainments services, magazines, and clothing.
- Curtis J. Jackson III owns trademark registrations for 50 CENT for music recordings but also clothing, books, and audio equipment.
- RuPaul Charles owns a trademark registration for RUPAUL for prerecorded CDs featuring musical performances by a professional entertainer.
There are some limitations to what can be registered. First, no one can register a trademark that includes the name, stage name, or nickname of a live person unless they are that person or they have that person’s permission.
The rules about generic and “merely descriptive” trademarks still hold. Julia Child had a registered trademark for THE FRENCH CHEF for entertainment services. I doubt that she would have been able to register THE FRENCH CHEF for cooking services.
Shout out to Aubrey B. for the question that led to this blog post.
Shout out to photographer, Jim Clark of the U.S. Fish and Wildlife Service, for the amazing coyote photo.
Can a decoration on a cupcake be a trademark?
The cupcake pictured to the right is the “9:30 Cupcake” from the Buzz Bakeshop in Alexandria, Virginia. No doubt the bakeshop is frequented by examiners from the U.S. Trademark Office just a few miles up the street. This particular cupcake was photographed a moment before it was eaten by Liz, a long-time reader of the Bee Blog. She wanted to know whether this cupcake is infringing on the trade dress of Hostess®.
It does look suspiciously like a Hostess® cupcake, because it has white loop-de-loops of icing on top of chocolate frosting.
Hostess originally produced its chocolate cupcake in 1919 and the squiggle was added in 1950.
Hostess Brands, LLC doesn’t have a trademark registration for the trade dress consisting of white loops on a chocolate cupcake. It does have a trademark registration for the words THE ORIGINAL SQUIGGLE.
Entenmann’s® also sells chocolate cupcakes with white squiggles.
Rubicon Bakers® takes a much more impressionistic turn on the white squiggle.
Here’s my theory: You can distinguish among the brands of chocolate cupcake by the number of loops on white frosting.
- If it has 7 loops, it’s a Hostess brand cupcake.
- If it has 6 loops, it’s a Buzz Bakeshop brand chocolate cupcake.
- If it has 4 loops, it’s definitely from Entenmann’s.
- If it’s open to interpretation, it’s from Rubicon Bakers.
The marketplace is wide open for a 5 loop brand. Any takers?*
Liz B. does it again with a great question and featured photo to boot. Thanks, Liz!
*Then there are Pop-Tarts® frosted chocolate cupcake toaster pastries, which frighten me more than I care to admit.