Alcoholic Sunny Delight? Recent Trademark Filings Indicate It May Be Coming

Is Sunny Delight getting into the alcoholic beverage industry? Recent trademark filings suggest so. On August 11th, Sunny Delight Beverages Co. filed federal trademark applications for:

• SUNNYD SCREWY
• SUNNYD SCREWIE

Both applications cover the same goods, namely:

• Alcoholic beverages, except beer; hard seltzer (in Class 33); and
• Fruit juice drinks containing water; fruit punch; non-alcoholic beverages, namely, carbonated beverages and fruit juice drink-based beverages with vitamins; energy drinks; beer (in Class 32).

Sunny Delight filed these applications on an intent-to-use basis, suggesting it is not currently selling these products but has a bona fide intention to do so in the near future. TMEP 806.01(b). While the filings in no way require Sunny Delight to sell a SunnyD Screwy or Screwie in the future, they do suggest that plans for an alcoholic beverage are in the works. Sunny Delight will need to start actually selling the products before these trademarks can register, as trademarks cannot be registered until they are in use (with limited exceptions).

This isn't the first federal trademark application covering alcoholic beverages filed by Sunny Delight. Back in June 2021, it filed another application for SUNNYD covering "alcoholic beverages, except beer; hard seltzer." That application was approved by the U.S. Patent and Trademark Office, but Sunny Delight still needs to prove it is actually using that mark in conjunction with alcoholic beverages before the mark can be registered.

For those of you who dreamed of a Sunny Delight screwdriver, your dream may be coming true soon.

Are Mr. Peanut, Skippy, and SPAM Moving into the Virtual World? Recent Trademark Applications by Hormel Foods Suggest So

As the metaverse becomes more and more popular, many brands are filing trademark applications for virtual versions of their goods and services. Hormel Foods LLC is no exception. On July 14th, the food company filed a federal trademark application for the Mr. Peanut logo seen below.

But that application doesn't cover peanuts. Instead, it covers the goods and services listed below:

• Downloadable multimedia files containing artwork, text, audio, and video relating to food and beverages, authenticated by non-fungible tokens (NFTs); downloadable virtual goods, namely food and beverage products for use in virtual worlds
• Online retail grocery store services featuring virtual food and beverage products for use in online virtual worlds; provision of an online marketplace for buyers and sellers of downloadable digital art images, video and audio clips, authenticated by non-fungible tokens (NFTs)
• Entertainment services, namely, online, non-downloadable virtual food and beverage products for use in virtual worlds

Hormel filed the application on an intent-to-use basis, suggesting it is not currently offering these goods and services in conjunction with the Mr. Peanut logo, but has a bona fide intention to do so in the near future. See TMEP 806.01(b). Hormel will be required to prove it is actually using the Mr. Peanut logo in conjunction with these goods and services in order to obtain the trademark registration.

This is not the first trademark application filed by Hormel Foods covering virtual goods. Earlier this month, the company filed applications for PLANTERS, MR. PEANUT, SKIPPY, and SPAM covering the same goods and services.

Trademark applications for virtuals goods are becoming more and more popular as companies seek to exploit business opportunities in the virtual world and expand their trademark protection into the same. Might you be buying virtual Skippy peanut butter and SPAM in an online grocery store soon? It appears so.

Distillery in New York Files Application to Register MARIJUISKEY as a Trademark for Whiskey. Any Issues?

On October 28, New Scotch, LLC dba New Scotland Spirits filed a federal trademark application for MARIJUISKEY covering "distilled spirits, namely, whiskey" in Class 3.

But what does this mark mean? Is it a combination of "marijuana" and "whiskey"? Like mariju-iskey? If so, the applicant is likely to run into issues during the registration process.

A trademark must be in lawful use in interstate commerce for the U.S. Patent and Trademark Office ("USPTO") to register it. See TMEP 907. If a trademark or the goods/services offered in conjunction with a trademark violate federal law, the USPTO will refuse registration under Sections 1 and 45 of the Trademark Act because the mark is not in lawful use. 15 USC 1051, 1127.

The federal Controlled Substances Act, among other things, prohibits the manufacturing, distributing, dispensing, or possessing of marijuana and marijuana-based preparations. Therefore, the USPTO will (and frequently does) refuse the registration of trademarks for marijuana or goods containing marijuana. Further, the USPTO is a federal office governed by federal law, so the fact that marijuana may be legal in the applicant's state is irrelevant.

Therefore, if MARIJUISKEY is a whiskey that contains marijuana, the applicant will get a refusal under Sections 1 and 45 of the Trademark Act, though that refusal may be premature at this point. This application was filed on an intent-to-use basis, meaning the applicant has not yet submitted a specimen showing the USPTO how it uses this mark on its goods (and a cursory review of the applicant's website does not reveal this whiskey). Therefore, other than assumptions about the name, there's currently nothing to suggest this whiskey has anything to do with marijuana.

However, the mark itself may prompt the examining attorney assigned to this application to issue an inquiry into the lawfulness of the applicant's goods and request additional information, which they are permitted to do. See TMEP 907. If the applicant's evidence indicates this whiskey does contain marijuana, and therefore isn't lawful at the federal level, the USPTO may refuse registration based on this "extrinsic evidence" even if the description of goods in the application itself (i.e., "distilled spirits, namely, whiskey") is lawful. Id. On the other hand, if it turns out MARIJUISKEY whiskey doesn't contain marijuana, there's no basis for a refusal based on unlawful use. 

Interested in the fate of MARIJUISKEY? Check in on the application in approximately three months after it is reviewed by an examining attorney.

Jordan Belfort, the Wolf of Wall Street, Files Application to Register His Name as a Trademark

Jordan Belfort, the former stockbroker played by Leonardo DiCaprio in the 2013 Wolf of Wall Street movie, recently filed an application with the U.S. Patent and Trademark Office to register his name, JORDAN BELFORT, as a trademark.

What types of goods and services does the Wolf of Wall Street intend to sell under his name? Apparently a variety, according to the application. The goods and services listed in the application span seven different classes and include the following:

• Cologne and after shave gel (Class 3);
• A variety of clothing, including shirts, hats, shoes, and pajamas (Class 25);
• Gaming machines for gambling and board games (Class 28);
• Beer, sports drinks, energy drinks, and soft drinks (Class 32);
• Wine and spirits (Class 33);
• Ashtrays, e-cigarettes, lighters, tobacco grinders, and tobacco water pipes (Class 34); and
• Entertainment services, namely, personal appearances by a celebrity (Class 41).

The application indicates Mr. Belfort has been providing the entertainment services in Class 41 in conjunction with his name since August 26, 2008, but is not yet providing the other goods (which were all filed under an "intent to use basis"). Before JORDAN BELFORT can be registered as a trademark for the listed goods, Mr. Belfort will need to make sales of those goods, or transport those goods, under his name in interstate commerce and submit sufficient proof of same to the USPTO. See TMEP 1103.

Mr. Belfort also filed an application to register WOLFPACK as a trademark for various business consulting, job training, career counseling, and educational services in late September 2020. According to my quick search, that application and the application for JORDAN BELFORT are the only two federal trademark filings currently in Mr. Belfort's name.

Quarterly Index (7/1/20 - 9/30/20)

 Other Unique Trademark Filings:

• San Francisco Company Files Application to Register GAS STATIONS IN SPACE as a Trademark for...Space Gas Stations? [07/1/20]

San Francisco Company Files Application to Register GAS STATIONS IN SPACE as a Trademark for...Space Gas Stations?

Are space gas stations the future? Maybe. According to their website, San Francisco-based Orbit Fab, Inc. is apparently working on establishing the first gas station in space for satellite refueling. And the company recently filed a federal trademark application in that pursuit.

On June 26, Orbit Fab, Inc. filed an application to register GAS STATION IN SPACE as a trademark with the U.S. Patent and Trademark Office. The application covers the following goods and services:

• Fuel for satellites, spacecraft, space vehicles, and space stations; propellant for satellites, spacecraft, space vehicles, and space stations (Class 4); and
• Repair, maintenance, and refueling services for satellites, spacecraft, space vehicles, and space stations (Class 37).

In other words, space gas stations? The application was filed on an intent-to-use basis, so it may never register, but does indicate Orbit Fab, Inc. has plans to launch such gas stations (which is confirmed by the company's website).

But is GAS STATIONS IN SPACE merely descriptive of the underlying goods and services? If so, Orbit Fab will have a difficult time getting this mark registered (on the Principal Register, at least).

A trademark is generally "considered merely descriptive if it immediately conveys knowledge of a quality, feature, function, or characteristic of an applicant’s goods or services." See TMEP 1209.01(b).

Does GAS STATIONS IN SPACE merely describe a quality, feature, function, or characteristic of the refueling services for satellites, spacecraft, space vehicles, and space stations? What about fuel for such vehicles? We'll find out what the USPTO thinks in approximately three months after this application is assigned to an examining attorney for review.

According to my quick search, this is the first ever federal trademark application filed by Orbit Fab, Inc.

Quarterly Index (4/1/20 - 6/30/20)

Food and Drink Trademark Filings:

• Is Pepsi Blue Making a Comeback? A Recent Trademark Application Suggests So [06/30/20]

Other Unique Trademark Filings:

• Bauer Hockey Files Application to Register BAUER as a Trademark for Sanitary Masks, Face Shields [5/12/20]
• PwC Files Application to Register AUTOMATIC CONTACT TRACING As a Trademark for Web-Based Software. Any Issues? [5/11/20]