® - The “Harp” design is registered for use with beer, owned by Diageo Ireland Unlimited Company, and used prominently on Guinness® beer packaging, often thought of as the Irish. But do you know what else the mark is protected for? The harp logo is also registered for use with numerous other goods, such as clothing, cups, bottles, decanters, mustard, baked goods, marinades, confectionary, instruments, leather and imitation leather goods, blankets, mirrors, and the list goes on!
KISS ME I’M IRISH STEW® for use with pet food, owned by Société des Produits Nestlé S.A.
Catchy slogans that remind you of a special celebration or holiday may have rights attached. The general rule is that a completely descriptive word or slogan is fair game for all. However, be wary of the use of words that are unique and catchy (not descriptive) that you’ve heard used before. If you want to adopt a phrase you’ve heard before, thinking it would be great for your own product promotion, take care it isn’t already someone else’s intellectual property. Consumers tend to remember the source of the product/services identified through use of catchy words and phrases, becoming source identifiers. Even without trademark registration, if a consumer becomes confused about the source of the product due to a competitor using a similar mark to attract consumers, that is trademark infringement.
St. Patrick’s Day Patents
Intellectual property (IP) rights are also found in patents that protect unique inventions. Patents protect product designs and/or systems and methods of producing or creating things. Around St. Patrick’s Day, green beer offerings pop up everywhere ready for the celebration theme. Did you ever think that green beer might be patented? It’s not—not the beer itself. Methods and systems for how to achieve green beer have been the subject of many patents, though. A quick search for green beer-related patents identifies various patents in different countries relating to efficiencies in making the beer, special brewing methods, coloring agents, and even one for a special tap system to facilitate the coloring of the beer.
Having a unique idea that is sought after can be a great asset and should be protected. Rights owners understand this and are always on the lookout to stop infringers from taking advantage of their innovations.
How to Protect Against Infringement
As a trademark owner, rights emanate from use. So, even without a state or federal registration, there are options for stopping third party use of your own rights. For patents, a registration must be granted before rights can be enforced, but once granted, the protection rights go all the way back to the effective filing date of the patent application.
A seller interested in using catchy phrases to promote products/services should perform a quick check of the United States Patent and Trademark Office (USPTO) databases to help identify third party rights in words, phrases, or designs. The patent and trademark databases are public record and provide constructive notice to the public of those rights.
A violation of intellectual property rights is generally a strict liability tort, meaning that lack of intent to infringe or knowledge of another’s rights is not a valid defense. Liability is found with a mere showing that the infringing act happened. Therefore, utilizing public records is an important step every marketing department should take in coming up with new promotions. Consulting knowledgeable intellectual property counsel to conduct preliminary clearance searches for trademarks and new product offerings can provide an informed approach and help reduce the risk of intellectual property infringement.
