Boston Strong: The Trademark War Continues (Part 2)
Well, hi there! Looks like you’ve returned for the riveting conclusion of my analysis of the “Boston Strong” trademarks. (And if you didn’t read the first part, here it is.) Let’s jump right in and discuss the possible fate of some of the more creative filings, for jewelry, beer and coffee. The jewelry application is for this bracelet, which is etched with the phrase “Boston Strong.” While being offered by a private company, a portion of the proceeds is going to One Fund Boston. I actually think this has a pretty good chance of going through. It refers to one specific product, from one specific company, and they do refer to it as the “Boston Strong” Bracelet. So it is functioning as a source identifier. It still remains to be seen, however, if the phrase is (or will have become) too ubiquitous to be trademarked. While I think this may be true for t-shirts (they are everywhere), I haven’t seen that much jewelry. This definitely works in their favor.
A completely different issue arises when you look at Boston Strong as a beer. While I believe it avoids the “ubiquity/public domain” issue (I would argue that the phrase has nothing to do with beer in itself, and has not been embraced by the marketplace as a message for beer), an issue of descriptiveness arises. For example, if the beer is a Belgium Strong Ale, from Boston, it’s arguably descriptive. See, no one can get trademarks (as in, fully exclusive rights) on words that are descriptive of the goods and services they offer. For example, our company cannot get exclusive rights over “Legal,” even though it’s part of our brand name for New Leaf Legal. Other law firms need to use the word “legal” to describe their own services. So here, the question here is whether “strong” is descriptive of a type of beer, or/AND a play on words from the ever popular “Boston Strong” phrase. Personally, I think the applicant has a strong (ha!) case for a double entendre argument, which can overcome descriptiveness. Plus, I also think it’s the most creative application, from a brand perspective. I’ll be keeping my eye on this one.
The final application is for coffee, which is actually a rebranding of the Meahuna Coffee Company, based in Tewksbury, Massachusetts. You can see their announcement here. The arguments for and against register of this mark as similar to those I laid out for Boston Strong Beer, but I believe Boston Strong Coffee has a better chance at being deemed suggestive (and not descriptive). While many people describe coffee as “strong,” it’s not a word that’s necessary to describe coffee. I would put it in the same class as “bold,” “mild,” “crisp,” “aromatic,” etc. At worst, I see this mark getting through with a disclaimer on “Boston” as a geographic indicator (although, one could argue that, at least as the local market sees it, Tewskbury is not where NEAR Boston!).
So, those are my thoughts. They are certainly by no means the only roads these marks could take, and I could be way off base. Sometimes the USPTO even surprises me! But if you’re interested in following the progression, please do check back to the blog regularly. Until then, keep the sentiment behind the trademark(s) alive – Boston Strong!
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