“Survival of the Fittest: Enforcement for the 2020 COVID-19 Trademarks”November 12, 2020
On June 16, 2020, the U.S. Patent and Trademark Office (USPTO) began accepting petitions for its COVID-19 Prioritized Examination Program, which, similar to its patent counterpart, is to streamline bringing COVID-19 medical products and services to market.
“While the program provides a justifiable shortcut to examination for many marks obviously worthy of prioritization, as with many culturally based trademark crazes, not all COVID-19 related applications will be so worthy as to reach registration, never mind on a prioritized basis,” the authors explain. “Applicants seeking to capitalize on the current global pandemic are particularly at risk to fall victim to potential hurdles during both the examination process and as affirmative grounds for cancellation by third parties seeking to enforce their brands arguing likelihood of confusion and descriptiveness issues.”
The article continues on to cover the likelihood of confusion and descriptiveness hurdles, and enforcement actions before the USPTO and federal agencies. Ultimately parties should keep in mind not only the more common pitfalls experienced in trademark prosecution, but also the particular nuanced issues that arise during enforcement and third-party policing of COVID-19 marks.
Readers may access Maureen and Kelley's article "Survival of the Fittest: Enforcement for the 2020 COVID-19 Trademarks" on Westlaw Today.