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'CrackBerry' and Originality in Trademark Parodies
In Research in Motion Ltd. v. Defining Presence Marketing Group, Inc. and Axel Ltd. Co., Opposition No. 91181076 (T.T.A.B. Feb. 27, 2012), http://ttabvue.uspto.gov/ttabvue/ttabvue-91181076-OPP-8.pdf, the Trademark Trial and Appeal Board (the “Board”) addressed whether Defining Presence Marketing Group and Axel Ltd. (collectively, “Axel”) could obtain trademark registrations for CRACKBERRY for various goods and services. Research in Motion (“RIM”), producer of the BlackBerry device, opposed the registrations based on a likelihood of confusion and dilution with its BLACKBERRY group of marks. The Board wound its way through the likelihood of confusion and dilution analyses, eventually finding that Axel could not register the CRACKBERRY mark for any of its proposed uses. Three applications, related to computer services, e-mail, online retailing and the like, were denied due to a likelihood of confusion and dilution, while the last registration, for CRACKBERRY-branded clothing, was denied for likelihood of dilution. Slip op. at 1-3 (describing the proposed goods and services).
Parody and Trademark Registration
As the Board noted, trademark parody issues take on a different hue in the context of a request for registration, as opposed to an already-existing use sought to be enjoined. While a given parody may be protected under the First Amendment, such a conclusion does not compel the PTO to permit its registration. The difference is between affirmative restraint ' i.e., judicially provided injunctive relief ' and withholding a governmental benefit for failure to comply with statutory requirements. See 15 U.S.C. ' 1052(d) (a mark that fails the likelihood of confusion test with respect to a previously registered mark is not registrable). Thus, even if Axel might succeed in using CRACKBERRY as a mark in commerce, it does not follow that the mark is registrable, which would provide Axel with statutory benefits like incontestability and the presumption of exclusive use.
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