What’s Trending in Trademarks, January 2024: Travis Kelce’s IP Era, Liquid Death vs. Arnold Palmer, USPTO Scams | Erise IP
Every month, Erise’s trademark attorneys review the latest developments at the U.S. Patent and Trademark Office, in the courts, and across the corporate world to bring you the stories that you should know about:
Travis Kelce’s Trademark Era?
Taylor Swift is arguably one of the most valuable and trademarked musicians in history: she reportedly holds more than 100 trademarks. So it’s no surprise that fans think she gave IP advice to her new boyfriend: Kansas City Chiefs star Travis Kelce.
Kelce has filed for six recent trademarks:
- “TRAVIS KELCE,” his name
- “FLIGHT 87”, his jersey number
- “ALRIGHT NAH”, his catch phrase
- “KILLA TRAV” his Instagram handle
- “KELCE’S KRUNCH,” his cereal sold by grocer Hy-Vee
- “87 & RUNNING,” the name of his charity foundation
Will these marks receive approval? Regarding the KELCE’S KRUNCH mark, is Kelce’s newfound status as Swift’s boyfriend enough to meet the USPTO’s “acquired distinctiveness” standard? Kelce’s brother Jason, a star for the Philadelphia Eagles, is also a well-known NFL player.
Using the USPTO guidelines, do consumers directly associate KELCE’S KRUNCH with Travis Kelce, the applicant, as the source of the product? As the USPTO says, “Long-term use alone is generally not sufficient to show acquired distinctiveness for marks that are merely ornamental.”
The USPTO also requires a living person to consent to their name or likeness being trademarked, which is relevant for TRAVIS KELCE and KILLA TRAV. Of course, it should not be too difficult for Travis to consent…
Liquid Death/Arnold Palmer Backlash
Canned water company Liquid Death faced PR backlash after it changed the name of its new lemonade tea beverage from “Armless Palmer” to “Dead Billionaire” after it said it was threatened with a trademark infringement lawsuit.
The late golf legend Palmer is credited with inventing and popularizing the half-lemonade, half-iced tea mix. Arnold Palmer Enterprises owns trademark registrations for the mark ARNOLD PALMER in standard characters and stylized wording and beverage maker AriZona has used Palmer’s likeness and signature on its lemonade tea since 2002.
While Liquid Death is technically correct as Forbes estimated Palmer’s inflation-adjusted career earnings to be $1.3 billion, its statement ired the golf world, who noted Palmer’s charity.
“Arnold Palmer was one of the most humble and philanthropic star athletes ever,” sports broadcaster Jeff Eisenband wrote on X. “His estate is protective of the brand because @DrinkAriZona holds the distribution rights and sells their product for an affordable 99 cents. … Not the flex Liquid Death thinks this is.”
While the move likely helped Liquid Death avoid a lawsuit, Bloomberg Law broke down the unresolved questions that would have come up if Palmer’s estate tried to legally enforce rights to “Arnold Palmer,” a name that has become a popular and often generically used for mixed iced tea and lemonade.
As Bloomberg’s Kyle Jahner writes, “Terms that simply name a product are generic and can’t be registered or enforced as trademarks, but the boundary can be nebulous. And there’s little-to-no precedent for names that become generic terms for products, much less those related to a claim over right of publicity—control over commercial use of one’s name or likeness.” Read his entire analysis here.
Scam Reminder
If Erise or another law firm represents you as a trademark owner, remember that the U.S. Patent and Trademark Office won’t contact you directly asking for fees for payment. If they do, this is a fraud. The USPTO says the scammers will sometimes use a tactic called “spoofing,” where they will trick phone networks into displaying a name, number, and location (like that of the USPTO) different from their actual name, number, and location.
Other Marks in the News
[View source.]
