Addiction, opportunism and capitalism all crossed paths this month. America has been mesmerized Charlie Sheen. We’ve all had to endure the endless news reports chronicling Sheen’s love/hate relationship with his television show “Two and a Half Men” and it’s Executive Producer Chuck Lorre. Sheenisms are the latest “ism” to bastardize the English language, the most popular of which is likely “Tiger’s Blood”, after Sheen proclaimed that the feline concoction ran through his veins.
The phenomenon has even hit the United States Patent & Trademark Office (“USPTO”). Eleven applications for registration of the trademark “Tiger Blood” or “Tiger’s Blood” have been filed with the USPTO since March 3, 2011, almost all for some kind of energy drink. Before March 3, 2011, only two applications for the mark “Tiger’s Blood” had been filed in the previous four years.
Applications with the USPTO are not cheap. A properly analyzed trademark application can cost anywhere from $1,000 to $5,000 to file, depending upon how common the mark sought to be registered. Moreover, trademark filings cost $275 per class of good or services sought to be registered.
Almost all of the applications filed since March were filed on an “Intent to Use” basis, meaning that the applicant was not currently using “Tiger’s Blood” trademark but had a good faith intention to; obviously, with hopes of capitalizing on the Sheen phenomenon.
In the race to file applications to claim the exclusive right to use “Tiger’s Blood” some of the nation’s top lawyers failed to make the USPTO’s required “diligent search” to determine any prior use of the mark. The noted legal analyst Perez Hilton reported on March 9, 2011, that a “Tiger Blood” energy drink, inspired by Mr. Sheen, was being offered for sale. Notwithstanding Mr. Perez’s astute reporting, many alleged top law firms filed applications for the use of the mark for the same product, most notably, Jimmy Buffet’s Margaritaville Enterprises. Hopefully, this does not signal the start of optimistic entrepreneurs filing bad faith applications to use the USPTO for publicity purposes.
It will be an interesting decision if the USPTO approves any of the trademarks. Obviously, absent an agreement among them, only one can be registered in each product class. Generally, first use of a trademark in commerce grants the user appropriation for that trademark in the market and a USPTO application gives a presumption of appropriation in the United States. However, with the proliferation of “Tiger’s Blood” trademarks in such a short period of time, the USPTO may have some interesting decisions to make.
Most of us have laughed at Mr. Sheen’s foibles. However, protection of one’s intellectual property, including its trademarks, is no joking matter. Often intellectual property is an extremely valuable asset. USPTO applications should be made for legitimate business and commercial purposes by experienced and serious attorneys. If you think you have a name, slogan or other trademark that you use in your business that you would like to protect, the attorneys at Black & LoBello can give you guidance in your rights and abilities to protect that valuable asset.
