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Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney

Trademark Trial and Appeal Board clarifies family of marks

Some Colorado businesses want to trademark a family of marks that they have been using in their advertising. In order to better understand what is required to do so, business owners might want to be aware of a case involving Little Caesar’s.

The pizza chain was told that its use of repeated words, such as ‘Pizza! Pizza!’ or ‘Deep! Deep!” are not families of marks within trademark law. According to the Trademark Trial and Appeal Board, the chain’s repeated use of the terms does not rise to meet the definition of a family of marks. The board outlined what is required for families of marks to reach a level of distinctiveness, however.

According to the board, certain marks may acquire distinctiveness. This may be proven by showing that others have copied the marks, that the marks have been used for five or more years and that they have been exclusive, that there has been a substantial level of advertising and of resulting sales success from using the marks and that there has been media coverage that has been unsolicited. Businesses may also prove that their marks have acquired distinctiveness by conducting consumer studies. In Little Caesar’s case, the board held that the company had not used ‘Deep! Deep!’ for a sufficiently lengthy period of time to prove that the phrase had acquired distinctiveness.

Business owners might want to retain an attorney for advice about expanding and protecting its intellectual property. Legal counsel may also help their clients with litigating trademark infringement matters if others use their trademarks without permission to do so.

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