Anyway, unless you have been living on another planet since August 2006 (or maybe logged onto Facebook all day), all of you know that Twitter is a social networking and microblogging service that enables its 100 million registered users to post brief messages up to 140 characters that are displayed on their profile pages.  These messages are called “tweets” and, according to Wikipedia, there are an incredible 65 million tweets posted each day (the vast majority of which are about as intellectually stimulating as watching paint dry).  As you might expect, Twitter is the owner of a federal registration issued in 2009 for TWITTER (Reg. No. 3619911), which is registered for what amounts to social networking and telecommunications services that allow individuals to send and receive messages.  In addition, Twitter recently became the owner by assignment of a registration for COTWEET (Reg. No. 3780175), which is basically a software platform that help businesses market themselves using the Twitter service.  Also, Twitter has pending applications for TWEET (Serial No. 77715815) and RETWEET (Serial No. 77804841), both of which seek registration for services identical to those identified in its registration for TWITTER.

In early 2009, a Kansas company by the name of Teeshirtmania.biz, LLC filed three separate trademark applications seeking registration for TWITTER (Serial No. 77711787), TWEETME (Serial No. 77742436), and TWEET.ME (Serial No. 77742449).  These applications were filed on an intent-to-use basis and are for a variety of different products, including clothing, bumper stickers, pens, greeting cards, stationery, and other types of novelty items.  The Trademark Examining Attorney allowed all three applications to be published for opposition (although she did initially refuse registration of TWITTER on the basis that it was likely to cause confusion with Twitter’s prior registration for TWITTER and that it falsely suggested a connection with Twitter).  To the surprise of absolutely nobody, Twitter filed extensions of time to oppose the three applications while it further investigated its potential claims against Teeshirtmania.

Well, on August 25, Twitter took the plunge and filed notices of opposition against each of Teeshirtmania’s applications (Opposition Nos. 91196233, 91196240, and 91196275).  The oppositions against TWEETME and TWEET.ME are based on Twitter’s prior rights in its COTWEET and TWEET marks and allege a likelihood of confusion and dilution of its famous marks.  The opposition against Teeshirtmania’s TWITTER application is obviously based on Twitter’s prior rights in the TWITTER mark and similarly alleges likelihood of confusion and dilution, but also throws in for good measure a claim for false suggestion of a connection.  Teeshirtmania now has until the beginning of October to respond to the oppositions.  If Teeshirtmania chooses not to defend the oppositions, a default judgment will be entered against it and its applications will go abandoned.

Although not quite to the extent of Facebook, Twitter has been aggressive in going after those it believes are attempting to trade off of the notoriety and fame of its valuable trademarks.  Twitter has recently filed an opposition against an application for LUVTWEET, and is currently considering or has considered pursuing oppositions against:

DIPURTWEET (Serial No. 77935249)

TRAVEL TWEETS 100 (Serial No. 76700251)

TWEETSTAKES (Serial No. 77738012)

TWITTER (Serial No. 77755843)

TWEETWORLD (Serial No. 77704250)

TWITANIC (Serial No. 77735852)

TWITATAP (Serial No. 77719784)

So, I think the bottom line is that if you’re thinking about adopting a mark that resembles TWEET or TWITTER, you better prepare for a possible challenge by Twitter.  But, honestly, now that you’re informed and know that such a challenge is more likely than not, you might want to consider coming up with some other trademark that won’t require taking out a second mortgage to register.

After reading this article, I decided to see how many other oppositions Facebook has filed over the past couple of years against trademark applications owned by third parties.  The answer?  Since January 2009, Facebook has instituted 17 oppositions (about one opposition every 4.5 weeks) to challenge a variety of marks, including:

VISIONBOOK1 (Serial No. 77755527)

FAMEBOOK (Serial No. 77695428)

SAFARIBOOK (Serial No. 77769840)

GEEZERBOOK (Serial No. 77701642) (my personal favorite)

LAWYERBOOK (Serial No. 77657413) (where do I sign up?)

DOCTORBOOK (Serial No. 77657383)

ASSBOOK (Serial No. 77622795) (I think I’ll skip on joining that one)

TALKBOOK (Serial No. 76693743)

VETBOOK (Serial No. 77425396)

In addition to challenging applications for marks that incorporate the term “BOOK,” Facebook has also pursued oppositions against applications for MYSHAREWALL (Serial No. 77836062), SHAREWALL (Serial No. 77689405), DRUNK WALL (Serial No. 77482477), and SUPER WALL (Serial No. 77425457), all of which are based on Facebook’s rights in its federally registered trademark WALL (Reg. No. 3723894).  And if you have to ask what a “wall” refers to on Facebook, it’s probably just best if you pick up your Western Electric telephone and politely ask the operator to connect you to anyone else in the entire world.

Oh, and Facebook also owns a pending intent-to-use trademark application for FACE (Serial No. 78980756), which is likely going to be opposed by a company called Think Computer Corporation.  You can read more about that particular dispute here, but needless to say, if Facebook is eventually successful in obtaining a registration for FACE, you can be sure it won’t be shy about asserting its rights.

So, what have we learned today?  Well, “like” it or not, you probably shouldn’t adopt, use, or attempt to register trademarks that include the words “FACE,” “BOOK” and/or “WALL” for services even remotely related to online social networking unless you want to spend more money than you have in your bank account fighting Facebook and its team of highly skilled and well-compensated attorneys.  I know.  As great as BOOK WALL FACE would have been for the name of your revolutionary new social networking site, I think it would be safer if you just tweaked it ever so slightly to remove all three words and replace them with three completely different ones.  And I don’t mean MY TWITTER SPACE.

Well, on July 23, the Texas government ponied up the $300 government filing fee (plus attorneys’ fees) to officially file an opposition against Daughters’ trademark application for THE ALAMO.  The Notice of Opposition (which was amended by the State of Texas on August 11) basically asserts that the State has owned the Alamo property since 1883 and that Daughters acts as a trustee for the State in its preservation and management of the Alamo.  In other words, Texas is arguing that Daughters is merely a licensee of the ALAMO mark, and that by virtue of the fiduciary trustee relationship between Daughters and the State, all use of the ALAMO trademark by Daughters in connection with museum services accrue to the sole benefit of Texas.  Therefore, because Daughters is not the rightful owner of the ALAMO mark, it is not entitled to seek registration of the mark with the Trademark Office.  Also, in the most egregious case of “better late than never,” the State of Texas finally applied to register THE ALAMO for a variety of services (including museum services) a few days after it filed its opposition against Daughters.

I personally think this is a pretty interesting case that isn’t necessarily a slam dunk for either side.  Clearly, the State of Texas owns the Alamo property and Daughters was appointed by law to ensure that the physical Alamo property was preserved as a memorial to those who died defending the property back in 1836.  According to the Notice of Opposition, the revenues generated from the museum, guided tours, and gift shop on the Alamo property are considered State funds that are used by Daughters to preserve the Alamo’s structure and grounds.  What is also abundantly clear is that Daughters is the entity responsible for commercializing the ALAMO name and using it in connection with a museum, gift shop, guided tours, etc.  The question that remains is whether the State of Texas owns the name ALAMO for these services simply by virtue of ownership of a physical piece of property that was already publicly known as “The Alamo” for many years prior to the State of Texas obtaining ownership of the property in 1883.

I tend to believe the answer is no.  Let’s just say that my father owns an old, empty, dilapidated building that used to be a bakery 150 years ago and is still commonly known by the public as the ABC Bakery.  I ask my father if I can open up a restaurant in the old ABC Bakery and he says yes so long as all of the revenues generated by the restaurant are considered his but go to the upkeep of the building.  I agree (I’m not a very good businessman) and open up a gourmet restaurant called the ABC Bakery.  I spend a ton of money advertising my restaurant and it becomes extremely well-known throughout the Untied States for serving the highest-quality food.  Unquestionably, I took what was merely the commonly recognized name of a geographic location and turned it into a trademark for restaurant services.  Does that now mean my father owns the ABC BAKERY trademark for restaurant services by virtue of merely owning a building commonly known as the ABC Bakery?  I think not.  And that’s why I don’t think the State of Texas owns the name ALAMO for the museum services, guided tours, and retail services that are rendered on the grounds of the Alamo site.

But, you know, instead of litigating this dispute, perhaps Daughters and the State of Texas should act in accordance with the Texas state motto (“Friendship”) and just agree to a friendly eating competition down at the famous Big Texan Steak Ranch in Amarillo.  First to finish the 72 Ounce Steak Challenge gets all rights in the ALAMO trademark.  May the biggest appetite win!

Sometime long after Burck started using the NAKED COWBOY mark in connection with his services, ex-stripper and comedian Sandy Kane invaded Burck’s turf when she started performing her musical numbers in Times Square wearing only a bikini, boots, and a cowgirl hat, while referring to herself as THE NAKED COWGIRL.  After Kane sanely refused to sign a “Naked Cowboy Franchise Agreement” and pay the required franchise fee, Burck threatened to sue Kane for trademark infringement stemming from her use of the name NAKED COWGIRL in connection with her live music and comedy performances.  And that’s where the story ended.

Until now.  On July 21, Burck filed suit against Kane in the United States District Court for the Southern District of New York (Case No. 10-5539) alleging trademark infringement, unfair competition, false advertising, dilution of a “famous” trademark, and pretty much every other related cause of action Burck’s attorney could think of.  In the complaint, Burck asks that the court (1) issue an order barring Kane from using the NAKED COWGIRL trademark, (2) award monetary compensation in the form of actual damages suffered by Burck, as well as all profits Kane derived from her use of the NAKED COWGIRL mark, and (3) award Burck’s his costs and attorneys’ fees in bringing this lawsuit against Kane.

As I stated in my previous post, I believe Burck has a pretty strong case against Kane for a variety of reasons.  But, I also suggested that Kane may be in the position to cancel Burck’s trademark registration for NAKED COWBOY on the basis of fraud on the Trademark Office because Burck declared in his application that the NAKED COWBOY mark was in use in connection with all of the services listed in the application when it seems that the mark may have only been in use in connection with some of the services.  In my post, I pointed out at least 15 distinct services listed in Burck’s registration that do not appear to have ever been rendered by Burck under the NAKED COWBOY mark.  I also just noticed that Burck represents in his registration that his first use of NAKED COWBOY was in 1991, but that his official bio located on his website claims that his first use of the mark was near the end of 1997.  I’ll concede that Burck may be good at prancing around in his skivvies, but I think he should probably stay away from filing any more trademark applications without the assistance of a trademark attorney (and I happen to know a pretty good one…).

Well, Kane’s attorney obviously must have been reading my blog because on July 30, Kane played a little offense by filing a Petition for Cancellation against Burck’s registration for NAKED COWBOY, alleging fraud on the Trademark Office (Cancellation No. 92052835).  The Petition (to which Burck’s infringement lawsuit is attached as an exhibit) requests that the Trademark Trial and Appeal Board cancel Burck’s registration due to materially false statements knowingly made by Burck during the prosecution of his trademark application, specifically those dealing with his declaration that the mark was in use on all of the services recited therein.  Burck now has until September 8 to file a responsive pleading to the Petition for Cancellation.  If Burck fails to do so, a default judgment will be entered against him and his registration will be canceled.

So, the saga continues and I’ll try to post updates about the case as I come across new information.  And I’ll do so fully clothed.  Trust me, I have no desire to be known as “The Naked Attorney.”

In its response to the Trademark Office’s rejection, Apple halfheartedly argued that (1) the word “app” is not merely descriptive because it could be an abbreviation for words other than “application,” such as “apparatus,” “appendix,” and “appointed,” and (2) the word “store” is not merely descriptive because the iTunes App Store is not a traditional brick-and-mortar store or online retail store.  Finally, Apple rather humorously argued that its APP STORE mark “creates a clearly recognizable double entendre” in that APP would “be immediately recognized as a variant of the applicant’s well-known APPLE STORE mark.”  Yeah, right.  “App” is short for “apple.”  Give me a break.  Nobody knows or refers to Apple as “app.”  Not a single person.

After the Trademark Examining Attorney was done cracking up at Apple’s ridiculous and nonsensical arguments, he issued a final refusal to Apple consisting of approximately 145 pieces of internet evidence tending to show that APP STORE would be perceived by the general public as merely a place to purchase software applications.  End of story, right?  Apple waves the proverbial white flag.

Unfortunately not.  Instead, Apple filed a Request For Reconsideration, admitting that APP STORE is, in fact, merely descriptive but that the mark is entitled to registration anyway because it has acquired distinctiveness and secondary meaning.  In other words, Apple argued that the general public would recognize APP STORE as belonging to Apple (and only Apple) because of the extraordinary success of the iTunes App Store, its extensive marketing and promotion of the APP STORE mark, and the unsolicited media coverage of Apple’s services.  In support of its argument, Apple attached a whopping 400 pages of exhibits, including sales figures, advertisements, and media articles.  And you know what?  The Trademark Examining Attorney was actually persuaded by all of Apple’s evidence (or more likely didn’t feel like looking through all of it) and allowed Apple’s application for APP STORE to be published for opposition.

Well, apparently Microsoft was paying close attention to Apple’s APP STORE trademark application because on July 6, 2010, it filed an opposition against the application on the basis that APP STORE is generic for a store that sells software applications and, therefore, is legally incapable of identifying and distinguishing Apple’s services from those of its competitors.  Microsoft specifically attached evidence to its Notice of Opposition indicating extensive third-party use of “app store” in connection with their own services, media articles generically referring to “app store” as a place to purchase applications, dictionary definitions of the words “app” and “store,” and even statements on Apple’s own website in which Apple refers to “apps” in the generic sense.  I also note that I’ve personally never seen Apple use a “TM” next to APP STORE, which you might expect if Apple truly believed it could claim exclusive rights to the phrase.

I could not agree more with Microsoft’s position and, honestly, I think every software application provider should be thanking Microsoft profusely for taking a stand against Apple’s anti-competitive behavior.  I mean, let’s say that I owned and operated a pet store and I decided to not-so-creatively name it PET STORE.  I spend 500 billion dollars over 30 years advertising and marketing my services, and I am known as the best pet store in the world, and my pet store does 100 billion dollars worth of sales each year, and my pet store is featured in thousands of newspapers, magazines, trade journals, and my pet store is written about on thousands of websites, and my pet store is the biggest in the United States.  Guess what?  I still don’t have a trademark!  The fact is that a generic phrase like “pet store” can never become a trademark under any set of circumstances for a store that sells pets, just like “candy store” can never become a trademark for a store that sells candy, “grocery store” can never function as a trademark for a store that sells groceries, and “app store” can never become a trademark for a store that sells apps.  These types of phrases are freely available to any business that wants to use them.

Hopefully, the Trademark Trial and Appeal Board will see right through Apple’s smoke-and-mirror arguments and deny it the monopoly it seeks.  Of course, if you disagree, please feel free to drop a comment.

Just when you thought New York City only needed (and frankly only wanted) one nude buckaroo roaming the streets entertaining and/or scaring and/or mortifying those who happen to come across him, here comes comedian and ex-stripper Sandy Kane (whose real name is Sandra Brodsky) to provide New Yorkers even more rancher-in-the-raw festivities.   According to a story in the New York Post, the bikini-clad Kane has been appearing and performing in Times Square for several years calling herself THE NAKED COWGIRL.  The story reports that Kane and Burck used to have a good relationship but it turned sour when Kane refused to sign a “Naked Cowboy Franchise Agreement” and recorded a song called “The Cowboy” with another male counterpart.  Burck is now threatening to sue Kane for trademark infringement stemming from her use of the name NAKED COWGIRL in connection with her live music and comedy performances.

Like most ordinary people would after reading this article, I surfed over to the Trademark Office’s website to see whether Burck happened to own a federal trademark registration for NAKED COWBOY.  Sure enough, he applied to register NAKED COWBOY on July 15, 2009 and was granted a registration for the trademark just over a month ago on May 25.  My search also revealed that Burck owned a registration for NAKED COWBOY dating back to 2002, but is was canceled in June 2009 for failure to file a declaration of continued use with the Trademark Office.  Hey, keeping those skin-tight briefs Clorox-white would be enough for any man to forget to renew his trademark registration!

In all seriousness, I think Burck has a pretty strong case against Kane for trademark infringement and unfair competition, especially considering the appreciable amount of fame and recognition Burck’s NAKED COWBOY name enjoys throughout New York and the exposure he’s had throughout the U.S.  Clearly, Burck doesn’t own the concept of dressing up (or is it undressing?) like a cowboy and performing music in the middle of Times Square.  Any freak-show is free to do that.  However, the issue is that Kane’s use of the name NAKED COWGIRL tends to imply an association or affiliation with Burck such that the public may mistakenly assume that Burck sponsors or endorses Kane and her performances.

But, Kane might have some leverage with Burck after all.  In reviewing Burck’s trademark registration for NAKED COWBOY, I note that the mark is registered for the following slew of services:

Educational and entertainment services, namely, providing motivational and educational speakers; Entertainment in the nature of circuses; Entertainment in the nature of dance performances; Entertainment in the nature of live performances by a musical personality/performer; Entertainment in the nature of live radio personality performances; Entertainment in the nature of on-going television programs in the field of news, comedy, variety; Entertainment in the nature of prerecorded sex-oriented, joke-oriented, insult-oriented messages by telephone; Entertainment in the nature of television news shows; Entertainment in the nature of live musical group, television comedy series, ethnic festival; Entertainment services, namely, live, televised and movie appearances by a professional entertainer; Entertainment services, namely, personal appearances by a celebrity, radio-TV personality, actor, movie star, model, sports celebrity; Entertainment services, namely, providing a radio program in the field of entertainment, comedy, motivational speaking via a global computer network; Entertainment services, namely, providing a television program in the field of entertainment, comedy, motivational speaking via a global computer network; Entertainment services, namely, providing an on-going radio program in the field of news, comedy, variety; Entertainment services, namely, providing an on-line computer game; Entertainment, namely, a continuing comedy, variety show broadcast over television, satellite, audio, and video media; Entertainment, namely, live music concerts; Entertainment, namely, live performances by musical bands; Entertainment, namely, television news shows; Multimedia entertainment software production services; Radio entertainment production; Radio entertainment services, namely, radio programs featuring performances by a person or individual, fictional character, radio personality, TV personality

As far as I can tell from Burck’s website and bio, it does not appear that Burcke actually has ever rendered, or is currently rendering, the services I have bolded above.  Therefore, Burck’s registration may be subject to cancellation on the basis of fraud on the Trademark Office in that Burck declared in his application that the NAKED COWBOY mark was in use in connection with all of the services when perhaps the mark was actually only in use in connection with some of the services.  Kane may be able to use the threat of a cancellation proceeding to help her reach a satisfactory settlement with Burck that doesn’t include paying Burck $5,000 per year to be a Naked Cowboy franchisee.  Just a thought.

Whatever happens, the naked truth is that (1) Kane shouldn’t use the NAKED COWGIRL name if there is a likelihood of confusion with Burck’s prior use of NAKED COWBOY, and (2) Burck, well, he should just put on some pants already.

Anyway, about three months later, a trademark examining attorney at the Trademark Office reviewed Pulser’s application and specifically requested that Pulser “specify whether the letters RDIO have any significance in the computer software, internet, or entertainment industry or as applied to the goods/services described in the application.”  In response, Pulser bluntly indicated that RDIO “has no significance in the relevant trade or industry or as applied to the goods/services listed in the application.”  Relying on Pulser’s representations, the Trademark Examining Attorney allowed Pulser’s application to be published for opposition on September 30, 2009 (it wasn’t challenged by any third party) and the Notice of Allowance was issued on January 12, 2010, thereby giving Pulser six months to provide proof to the Trademark Office that it is actually using the mark in interstate commerce in connection with all of the products and services recited in the application.

If you couldn’t already tell from my tone, I strongly believe the Trademark Office made a gross error in not refusing to register Pulser’s RDIO mark on the basis that it is generic for many of the products and services listed in the application.  As many of you probably already know, generic terms are not trademarks and can never be protected if their primary meaning is the actual name of the product or service with which they are being used.  For instance, the word “soap” for body cleansers is generic, as is the word “pencil” for certain writing utensils.  This tenet also holds true for misspellings of generic terms that do not materially change their common meaning.  For example, the word “photo” does not become any less generic for photography products and services by spelling it “foto” unless that spelling alters the meaning or connotation of “photo.”  That is why the owners of FOTO FANTASY (Reg. No. 2769186), FOTO QUICK (Reg. No. 2997542), and FIRST FOTO (Reg. No. 2926355) were required to disclaim exclusive rights to use “photo” apart from the marks as a whole.  Unquestionably, the word “foto” in these situations is simply an intentional misspelling and nothing more.

Similarly, Pulser’s RDIO mark is clearly the word “radio” with the second letter missing.  Contrary to Pulser’s assertions, the general consuming public would primarily recognize RDIO as merely a misspelling or variation of “radio” when used in connection with Pulser’s audio broadcasting and streaming services.  Even if you believe Pulser’s nonsensical statement that RDIO is a fusion of “radio” and “audio” that should be pronounced “r-dee-o,” wouldn’t it have made more sense for Pulser to apply to register ARDIO?  Now, that looks like a combination of those two words.  But, of course, it doesn’t look much like “radio,” now does it?  It’s almost like Pulser came up with it reasoning for choosing RDIO after the fact in order to help bolster its defense to a possible challenge.

In sum, RDIO is no more a trademark for audio broadcasting services than FOTO is for photography services.  If u disagre, plz feel fre 2 leav a komment.

While this opposition perhaps doesn’t rise to the level of being ridiculous, I do find it somewhat curious considering that a cursory search of the Trademark Office’s records revealed two other existing registrations for marks that incorporate the acronym SEC where the acronym is clearly referring to the Securities and Exchange Commission.  The first is a February 2009 registration for SEC TEA PARTY (Reg. No. 3579868) for “blogs featuring commentary on Securities and Exchange Commission and other legal matters,” and the other is for SEC FILINGS NAVIGATOR (Reg. No. 3729014) for what amount to providing online information and guidance to people concerning what information must be disclosed to the SEC.  I also note that the Securities and Exchange Commission has never attempted to register its SEC mark for any products or services whatsoever in the 75 years the agency has been in existence.  I guess it has just been too busy investigating and catching crooks like Bernie Madoff, R. Allen Stanford, Lehman Brothers, and Enron before their illegal schemes could cause catastrophic harm to millions of Americans.

I guess there is the small possibility that some people will be confused into believing that the SEC approves, sponsors, or endorses the services rendered by The SEC Institute.  As the plaintiff, the SEC is going to have to prove its case, perhaps with survey evidence and other expert testimony.  But as far as the SEC’s allegation of a false suggestion of a connection between the two entities, I’m sure the last thing The SEC Institute wants is people to assume there is any kind of association between itself and the SEC, especially considering the SEC’s incredible failures over the past decade to properly carry out its duties and the immense amount of negative media attention surrounding such failures.  In fact, The SEC Institute’s website has a small disclaimer on the bottom of each page which states that “The SEC Institute is not affiliated with the U.S. Securities and Exchange Commission (SEC).”  I swear, if I was The SEC Institute I would demand that the Securities and Exchange Commission immediately put a disclaimer on its website indicating that it is not affiliated with me!

Apart from whether the SEC has a decent case against The SEC Institute, I think it’s a shame that the SEC is spending a portion of its budget hiring one of the world’s largest and most prestigious intellectual property firms (Finnegan in Washington DC) to go after a company that is actually helping businesses and organizations comply with the SEC’s own rules and regulations (which I’m sure are onerous, burdensome, and complex).  The SEC Institute is certainly not harming the (already poor) reputation and (almost nonexistent) goodwill of the SEC name, and I very much doubt there has been any actual consumer confusion stemming from its use of THE SEC INSTITUTE over the past 25 years.  Although reasonable minds can certainly differ, I believe the SEC should be more concerned with spending its finite budget on protecting hard-working American investors from fraud rather than on an opposition that, in the best case scenario, would only prevent The SEC Institute from registering its trademarks and would do nothing to actually stop The SEC Institute from continuing to use its trademarks to advertise and sell its services.  Makes you wonder, no?

It probably doesn’t take a genius to figure out what types of programs are opened when these icons are touched (no, you don’t make a phone call by touching the camera icon).  What’s important to note about these icons is that they launch programs that are intrinsic to the devices themselves (telephone calls, email, text messaging, address book, and shooting photographs).  In other words, they are not software applications that merely “open the door” to information or functionality provided by a third-party.  Therefore, these icons do, in fact, function as trademarks to designate the source of the application, which is Apple.

On the other hand, Apple has also applied to register the following four icons for software applications that also come preloaded on its devices (again, click on the icon to see the trademark application):

For my readers who haven’t yet made the switch to the best smartphone on the market (you will eventually, trust me), the first icon allows the user to access videos on YouTube (a website not owned or operated by Apple).  The second one launches Google Maps.  The third icon allows the user to view weather information provided by Yahoo!.  And the last one opens an application which displays current stock prices and other financial information, also provided by Yahoo!.  In fact, when the weather and stock applications are launched, Yahoo’s well-known “Y!” logo appears on the bottom left corner of the screen with no reference to Apple whatsoever.  Furthermore, the word “YouTube” sits directly below the first icon when displayed on the iPhone screen.

So, what distinguishes these four icons from the previous five?  Well, these icons and their associated programs act more as an entry point to services and information provided by companies other than Apple.  Therefore, I believe there is a serious question as to whether users actually view these icons as source indicators (trademarks) for Apple’s computer software or, in contrast, they see them as source indicators for the underlying services provided by YouTube, Google, and Yahoo.  I mean, is there really any difference between these four icons and those associated with the other 150,000 apps available for download from the iTunes App Store created by independent developers?  For instance, when I purchase casino games from my favorite app developer (OK, I get them for free since he’s a good friend of mine), and the icon shows up on my screen, it’s not like I think that Apple is all of a sudden the company behind the game or the software.  Then, when I launch the game, the logo of the app developer appears and my game begins.  The same thing is true when I touch these four icons.  If anything, I would argue that these four icons function more as trademarks for YouTube, Google, and Yahoo! than they do for Apple.  If that’s true, then Apple would have little basis to maintain its trademark applications for those icons.  Of course, it’s a factual question that would perhaps require some survey evidence to answer, but the question remains nonetheless.

After reading this article, I was curious to see how many pending trademark applications and existing trademark registrations there are for marks incorporating the word “ALAMO.”  My cursory search revealed approximately 85, the oldest of which dates back to 1926 and is for “lemons.”  Of course, there’s also the well-known ALAMO for car rental services (Reg. No. 1097722), and the annual ALAMO BOWL college football game (Reg. No. 2074095).  I also noticed that The Daughters itself owns a registration for AGUA DEL ALAMO for “bottled water” dating back to 2001.  There are also about 50 other registrations that are dead because their owners failed to timely file a renewal.  So, clearly, over the years, many business have adopted and used marks incorporating the term “ALAMO” for a variety of different products and services.

Since I obviously don’t know all the facts pertaining to the long relationship between The Daughters and The Lone Star State, it’s impossible for me to intelligently comment on which party is the rightful owner of THE ALAMO mark.  However, it is my understanding that the Texas Legislature appointed The Daughters as permanent caretakers of The Alamo property in the early 20th century, which may be interpreted as a licensor-licensee relationship.  Whatever the case may be, I find it highly amusing that dozens of other businesses sought federal protection for their ALAMO trademarks while The Daughters and the State of Texas waited over 100 years to protect the very mark on which all of these other businesses’ trademarks are based.   I mean, I know the good people of Texas have a reputation for being laid back, but perhaps waiting over a century to figure out who owns THE ALAMO mark and to obtain federal protection for it might have been just a tad much.

Bottom line: Texas-sized litigation at the taxpayers’ expense may be on its way.