Imagine this scenario:
Developer: “Hey world, check out this new AR assistant I designed! You can talk to it and get helpful information from an augmented avatar.”
Lawyer: “Sorry, AR ASSISTANT® is a registered trademark, and you just infringed it.”
Developer: “Well, what else am I supposed to call a virtual assistant that you interact with in augmented reality?”
Lawyer: “There you go again. We also own AUGMENTED REALITY ASSISTANT®. That’ll be $10,000, please.”
One of the services I perform for clients is litigating Opposition proceedings in the US Patent & Trademark Office. These are administrative mini-lawsuits that seek to keep someone else’s trademark application from being registered. Usually, the basis for an Opposition is that the proposed mark would cause consumer confusion with the client’s mark. Sometimes, an opposer will argue that the mark doesn’t deserve protection because it is merely descriptive of the goods or services it’s used on, or–even worse, from a trademark perspective–that it’s “generic,” meaning that it just describes the category that the goods or services fall into.
These determinations are important, because trademark law serves significant pubic interests. We don’t want customers to be deceived into mistaking one company’s goods for another. And trademarks aren’t supposed to impoverish the English language and disadvantage competitors by giving individuals proprietary rights in basic, descriptive terminology. The USPTO’s Examining Attorneys usually do a good job fly-specking applications to avoid this outcome, but sometimes they miss one, or don’t know enough about the industry to realize the danger. When that happens, private companies need to step in and raise an objection.
As my readers know, I occasionally keep tabs on new AR-related trademark filings, just to stay abreast of how companies are branding the space. Every once in a while, though, I find applications for marks that, from my perspective, really don’t sound like protectable trademarks.
Today I noticed that an AR/VR company has applied to register the marks AR ASSISTANT, AUGMENTED ASSISTANT, and AUGMENTED REALITY ASSISTANT in connection with a huge list of “educational and entertainment services.” It’s an “intent to use” application, so they aren’t actually using these marks in commerce yet, but these applications would reserve their right to do so over anyone else who comes later. And once they are registered, the registrations become presumptive evidence that the marks are valid and enforceable nationwide, against anyone using not only those exact phrases, but also any phrase that sounds confusingly similar to them.
Once preliminarily approved by an Examining Attorney, every trademark application is “published for opposition.” Any member of the public who reasonably believes they might be harmed by the registration then has 30 days to file a notice of opposition, or else it will become registered. Think of it as the “speak now or hold your peace” part of the wedding ceremony. These particular applications were published for opposition on May 1, 2018. You do the math.
It will be interesting to see if anyone in the industry steps up to object.