Pizza and the Edge of the Trademark Universe

160512136The following is a guest blog post by Michael J. Thomas, a solo practitioner and founder of Creative Vision Legal, a Bay Area law firm offering legal services tailored to artists, musicians, and small business owners. 

Can you trademark a pizza flavor? A recent decision says no and offers a glimpse at the edge of the known trademark universe. The doctrines of functionality and inherent distinctiveness, like the force of gravity or tendrils of dark matter holding the galaxies together, will keep the trademark universe from expanding or hurtling waywardly outward (depending on your view). Continue reading

When Is a Chocolate Bar Iconic?

In a recent suit brought under the Lanham Act, Hershey is trying to stop Williams-Sonoma from selling a brownie pan in the design of a Hershey’s chocolate bar, i.e., a rectangle with 12 equally-sized rectangular panels arranged in a 4×3 format, with each panel having its own raised borders. Law.com reports that Hershey claims the infringement on its trademark was “purposeful” and “likely to cause consumers, purchasers and others to be confused or mistaken” into thinking the pans are somehow associated with Hershey.

This suit may end up being quite sweet for Hershey, because a successful plaintiff in a Lanham Act action may recover the defendant’s profits or the plaintiff’s damages, which may be trebled in the court’s discretion.

For more on the Lanham Act and trademark infringement generally, see CEB’s book on Trades Secret Practice in California. Also check out CEB’s program on Intellectual Property for Business Lawyers, available On Demand.

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