By Ben Langlotz
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September 18, 2018
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Business, Firearms, Firearms Industry Advice, How To, Intellectual Property Advice, Trademark
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0 Comments
“SNOOPING INTO YOUR COMPETITORS’ BUSINESS PLANS”
(What Their Trademark Filings Reveal)
Read on to see how this resolutely ties in to trademarks
Every month on behalf of my clients, and to keep tabs on the industry, I personally search and review every trademark in the industry. I like to know who’s filing what, and even who’s doing the filing. I can sometimes get a peek behind the curtain when a major company has their lawyers file an application even before a potential new product is announced, and with trademarks being selected to suggest characteristics of the product, it can be very revealing.
My main objective is to spot potential conflicts and infringements of my clients’ trademarks. It turns out to be much easier to resolve a problem in the weeks after a trademark application is filed, as opposed to waiting a year until the new trademark user has invested heavily in the brand as of product release. The goal is to protect your trademark rights and avoid an expensive legal battle. When it’s easy and cheap for them to surrender and take another tack, it’s much easier to resolve the matter.
The one thing that irks me most is when conflicting trademarks are filed by an attorney who obviously never even conducted a trademark search. When I search that attorney’s filings, inevitably they have filed very few, and obviously have little expertise in the specialty. As those who have tried to do it themselves know, there’s nothing technically hard about getting a trademark filed. The hard part is doing it right and not letting it lead into disputes or brands you can’t enforce.
This month there were 144 total filings that popped up in my search of “class 13” which includes all firearms-related goods, military weapons systems (like Raytheon missiles) and fireworks (which have lots of colorful trademarks but are easy to exclude as distractions unrelated to firearms). My report of the highlights excludes the many my firm filed this month, and my comments are informal discussion points, and not formal legal conclusions based on detailed research. Here’s what I found and what you can learn from an ordinary month of trademark filings:
ENDEAVOR was filed last month for CMMG for firearms. Good sounding brand. Solid, historic, and militaristic brands are often hard to find because many are already tied up as trademarks for goods related to firearms. This one looks clear. My first suggestion for branding is usually to consider ideas that depart from this pattern in order to set your product apart from all the others that sound like they’re named after warships. But that does give a database to mine: great warships, battles, and other military terms. On vacation last month I toured the aircraft carrier USS INTREPID. A quick search just now finds that term available in the firearms class –– whoever emails or calls first can be the one to file an Intent-to-Use application for a future product. First-come-first-served.
RESOLUTE. Also filed by CMMG. This trademark illustrates another good principle of branding: a family of trademarks that relate to each other. If a historic ship, especially with a British association, is the name of a new firearms product next year, who will you assume it’s from? And if you have had good experiences with CMMG products, you’ll automatically be drawn to their new offering. (As I fact check this I now see that CMMG is filing for the names of 1800 arctic exploration sailing ships – narrow but distinct). Trivia note: The famed desk in the oval office was a gift of the British government, made from the timbers of the HMS resolute. One can obtain a quality replica made to order for several hundred thousand dollars.
SABOTAGE. By Smith & Wesson for muzzleloading ammunition, presumably for their acquired Thompson Center Arms division. Sabot is of course descriptive of the sabot component of muzzleloading ammunition, so that term can’t be protected, but “Sabotage” nicely suggests not just the feature of (presumably) including a sabot but also lethality. Just as one small act can sabotage a major machine or operation, one shot with the right ammo can bring down a big beast. As a side note, this is an Intent-to-Use application filed to reserve a future trademark. They had filed the same in 2015 and filed extensions until time ran out and it became necessary to file this again. This illustrates how long you can tie up (reserve) trademark rights even when you’re not yet ready to begin use. One application lasts for up to three years of extensions, and you can refile if you need more time.
AMMO CLIP. Filed for all these goods: “Ammunition bags; Ammunition magazines and component parts for ammunition magazines; Bandoliers for holding cartridges or ammunition cases; Component parts for ammunition.” I’ll leave the applicant nameless because it’s an individual who filed without an attorney. As a way to support newcomers to the industry, my office actually sends a copy of my book to everyone who filed a firearms trademark without an attorney, and who ends up rejected. It’s an appreciated way to build new relationships. In this case, there are several apparent errors. The first indication is that wide range of goods. Do we really think they are selling ammo components (like brass casings) as well as bandoliers? It’s a mistake to assert goods that you really aren’t selling – it can make a trademark subject to challenge. I’d guess they’re selling magazines. But I can’t tell because of the second critical flaw in this trademark application: it seems to be merely descriptive. A trademark examiner is likely to reject this because AMMO CLIP seems to describe clips for ammo. The legal principle is that everyone has the right to describe their competing goods and everyone who sells ammo clips should be able to describe them that way (even if the term is a misnomer that is like fingernail on the chalkboard to gun terminology purists). This applicant may have saved money on the trademark filing, but if they had talked to me, I’d have probably talked them out of this apparently-unprotectable trademark and helped them pick something they could actually protect. A trademark you can’t enforce is of little value. Even a crappy but enforceable trademark has value.
SPACE FORCE. My favorite rule of branding is that if a trademark makes you smile, it’s likely a winner. It’s an individual I can’t identify as part of the industry, and they are trying to tie up every type of firearms-related item as well every business and web service under the sun. Seems like a wannabee entrepreneur who had one idea but doesn’t know what they’re doing. The lesson here is to pay attention to the “sticky” and viral topics from the news and consider which might be worth making your own brand. Another good note is that while some ideas like using Trump’s name or “MAGA” might generate a rejection for creating a false association, this one toes the line nicely. If they had a better trademark plan overall, this could be valuable.
J & L CUSTOMS. This firearms brand caught my eye. We have to work a little to see the letters in the images, but it’s pretty cool just the same.
BREAK FREE. This generations-old brand for cleaning oils and tools is just now being applied for. I presume that Safariland acquired the brand recently. What amazes me is when a company seeks to be acquired but hasn’t done the basic work of securing their trademark assets. It makes me wonder if the acquisition price would have been higher.
LIGHTHORSE AMMUNITION. Filed by a company formed under the laws of the Choctaw Nation of Oklahoma, a federally-recognized Indian tribe. Makes me wonder if such entities have to pay the federal excise tax. On the trademark front, they filed a bunch, and the oddity is that they filed both with and without the space for several filings (LIGHTHORSE AMMUNITION, LIGHT HORSE AMMUNITION). While spaces don’t much matter in trademarks, this goes against my advice to pick the actual spelling and be scrupulously consistent with your trademark use. Some make the mistake of thinking that filing both ways will give stronger protection. The reality is that filing it the one correct way will easily protect against the alternate spacing, hyphenation, even misspelling.
Safe Tacmag. This image shows a blue magazine. Safe Tacmag, LLC filed to protect the color blue for magazines. They sell a training magazine that accepts only safe training ammunition. The color blue would ensure that range officers can ensure that no live ammunition is present. Color as a trademark can be well known, and John Deere green and yellow and Owens Corning pink remind us of this. Color is an “interesting” legal theory of trademarks, and when I say interesting I usually mean uncertain and expensive for you, and fun for the lawyers. In our industry I’m struggling to think of any color that’s owned exclusively. Plenty of green logos coexist alongside Remington green, for example. In this case, having a magazine in a distinctive color gives a functional benefit, suggesting that trademark protection isn’t appropriate. But the particular color might be. Then again, if we asked the Blueguns folks (and their lawyers) I think there might be a bone to pick here.
CYA SUPPLY CO. For holsters. I really like CYA as a sticky brand that suggests the purpose of the goods. And anything that makes the customer think of “ass” probably makes them smile and remember the brand. I find myself imaging a holster worn to the rear – not practical but a visual image that sticks. They win points for also filing a word trademark without the logo. That’s because logos inevitably change while words don’t (remember the Betty Crocker trademark – her faces changes every generation, but her name never does), and a changed logo can’t be renewed. I have several concerns: 1. The graphic of the logo has nothing to do with the images generated by the brand – why not a donkey with a blanket over its back? 2. By needlessly including “Supply Co.” in the trademark they are narrowing their protection. I’d have advised to make CYA the brand and leave “Supply Company” in the fine print.
MUZZLELOADER.COM for a host of muzzleloading accessories. Someone probably bought the domain, and then decided to do all they could to protect their purchase. Waste of effort. “Dot com” has been established to ad nothing to a trademark. “Muzzleloader” is merely descriptive of muzzleloaders and associated goods. Owning the domain is the protection for that domain, and some businesses can succeed without even having a good trademark if the domain gives them traffic. I’m told that a leading domain no longer figures powerfully, but it can’t hurt. For instance, for those firearms inventors who have never heard of the “Langlotz” brand, when they find “gunpatent.com” they can be confident they found the right source. But I’d have a hard time protecting GunPatent as a trademark – a competitor would be able to use gun-patents.net if they really wanted to (which is why I bought up nearly 100 such domains – why make it inviting for others to compete with your business?).
