The USPTO is a wonderful place to see what innovation the world has to offer. Filed in Jamaica (as usual) on June 4, 2015, and in the USA on November 30, 2015, a Trademark application for an App Icon reveals that Apple has a new app coming down the pipes, although its purpose slightly nebulous.

A vague description of the app reads: “Providing online non-downloadable software used to create, prepare, format, update, publish, deliver, manage, and promote content for viewing on mobile devices and computers; support and consultation services for developing computer applications and providing computer software information online relating to the creation, preparation, formatting, updating, publication, delivery, management, and promotion of content for viewing on mobile devices and computers; providing online non-downloadable software used in connection with online advertising, advertising campaign management, market research, and monitoring readership, user engagement, advertising exposure, and consumer response; support and consultation services for developing computer applications and providing computer software information online relating to online advertising, advertising campaign management, market research, and monitoring readership, user engagement, advertising exposure, and consumer response”

What could this app do? Not sure, but my best guess is that it is a blogging platform. We’ll see if the next Apple OS will offer more clues as to this new app.

Sometimes there are decisions that boggle the mind. NoteStream’s application for their app icon trademark in a 3D perspective is one such decision. Presumably, the app icon will appear as a square on the smartphone or tablet, yet the application shows the icon “placed at an angle so that it appears three-dimensional with a stylized ‘N’ inside”.

The iTunes version of the app icon show the icon as every other icon: square and in 2 dimensions. Considering that the Trademark application was filed based on “intent to use” basis, query whether the USPTO accepts this iTunes version as a Specimen of Use? If yes, then we can interpret that as a broadening of the USPTO’s strict policy of ‘no material alteration’ between the Trademark and Specimen. However, if the USPTO rejects this Specimen, then NoteStream will have wasted money on a useless Trademark application.

USPTO TM application:

iTunes app icon:

Assurant’s Pocket Geek App is protected not by one but two US TM applications. In August 2014, Assurant applied for the same image, one with black ink on a white background and the other its negative, white ink on a black background.

This is wise practice, since it is reasonable to assume that one image is different enough from the other to merit its own TM, and it’s cheaper to register the TM than find out in litigation that one Mark does not protect the other image.

The one curious thing about these files is that Assurant used the same Specimen, white ink on a dark background, to demonstrate use of both Marks, and the USPTO Examiner did not object, even though Assurant had a perfectly good black ink on white background Mark in use on iTunes.

USPTO application 86033858

USPTO Application 86034026

App Icon on iTunes

USPTO Specimen of Use for both applications

Ever wanted a dancing tattoo? With Glimmer, you can! The Glimmer ‘augmented reality’ app combines a temporary tattoo that comes alive when viewed on the screen of a smartphone.

The App’s US Trademark application protects a capital “A” with a heart in the middle. Augmented reality is coming, and this is one of the first Apps out there.

Filed on February 20, 2015, Google’s latest trademark application (No. 86540971) for an App Icon has seemingly appropriated the Etch A Sketch. At first glance, the Icon looks like a happy face with the YouTube logo on its forehead. However, there is a striking familiarity to it, and anyone who has played with an Etch A Sketch will recognize the red frame, the knobs (disguised as eyes), and the famous screen.

In Google’s defense, the new App is not for a “self-contained opaque screen drawing device”, as protected by US TM Registration 2176320 to the Ohio Art Company, being the closest trademark that can be used to knock out Google’s application. Google’s application is for what YouTube does best: media sharing and such. However, given the celebrity of the twin-knob drawing toy, Google is tempting fate and may be slapped with a refusal based on dilution of a famous trademark.

Section 43(c) of the Trademark Law reads “Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner’s mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.

While it is still early to predict how this will shake up the world, we will be following development of this interesting attempt to ride the coat-tails of one of childhood’s more famous past-times. For now, you be the judge.

Google App:

Etch A Sketch:

Doggie Gone may have set a precedent in the App Icon TM world: its black and white specimen of use was rejected. Doggie Gone, a game about a wayward dog, filed US TM application No. 86249410 on April 11, 2014.

The Examiner did not accept the black and white specimen of use based on the fact that the specimen, demonstrating how the App is presented in the marketplace (iTunes, Google Play, etc.), did not match the App Icon drawing. There were numerous inconsistencies, one of which was color versus black and white. The Applicant corrected the error by filing a proper color image instead.

Could this signal the end of black and white images? We will have to see how future App Icon applications will be treated.

Specimen with Doggie Gone US TM Application

Doggie Gone App Icon

OpLink Security has applied for a trademark for their App Icon. They decided to leave their color options open, and filed for a black and white combination instead, even though their iTunes Icon is in color. This way, they can change color schemes throughout the life of the trademark without jeopardizing scope of TM protection.

Indeed, if you are not sure what colors you want to adopt, or have a whole series of App Icons with variable colors, black and white is a safe option.  If you have a definite color in mind, then you should by all means protect the mark with its color.

Lovetap’s “Female By Design” App is designed to track the periods, fertility and general well-being. Its App Icon features a shape resembling a heart or the letter V on a red background. This is a very good design, because it is not clear whether it’s a heart of a V, and competitors would be prudent to avoid getting too close to the shape.

LittleCast, a video player for Facebook videos, has applied for its App Icon trademark on September 11, 2013. It is so generic that should the USPTO allows this trademark, LittleCast will have difficulties pursuing copycats unless the copycat uses exactly the same image. Why? The trademark is too broad, using the universally-accepted ‘play’ button image. No one can be barred from the universally-recognized ‘play’ button.

Query whether Google’s YouTube App Icon (unregistered as a trademark) will impede LittleCast’s registration, as the colors and orientation are so similar:

If the USPTO does allows LittleCast’s trademark application, then we can infer that LittleCast’s protection is narrow, limited to the colors and orientation of the triangle inside the circle. Stay tuned!