(Update: there is now an Office Action in this case, see blog article.)
It looks like an attorney in Florida hopes to get exclusive rights to have red hair with pink tinsel, as trade dress for attorney services. No, I am not making this up.
Heidi Tandy, a trademark attorney with the firm of Shutts & Bowen, LLP in Miami, has filed US trademark application number 99571853 ( TSDR page ). There is much to reward the reader who clicks around in TSDR, among other things to see the specimens of use.
I heard about this trademark application from a long-time member of the e-Trademarks listserv.
The case got assigned to an Examining Attorney a couple of weeks ago.
Seems to me that at the very least, the Examining Attorney should require a disclaimer of the use of red hair other than as part of the trade dress as shown.
And it also seems to me that there should be a refusal on the grounds that the trade dress is a merely ornamental feature rather than a trademark to indicate the source of the services.
I’m not sure how the specimens, which are LinkedIn posts from INTA meetings, show use of the mark in the provision of legal services. Should be an interesting Office Action when it issues.
Posts are use of the mark in advertising the services, aren’t they?
Posts about your attendance at a conference? Seems a stretch to me.
Oh me, oh my
this one elicits a sigh
over what attorneys will try
to claim exclusive rights
questionable specimens aside
I just cannot see
the USPTO
allowing Ms Tandy
to secure rights
enabling her to tell me
I cannot dye my hair red
and put sparkly pink tinsel in it
if a TM atty I want to be
If this is her trademark “look” I would think her profile pic on her firm’s website would show it – but it doesn’t!
When I read about this, I assumed it was either a new trademark attorney or a general legal practice attorney- both with little experience in trademark law. I was shocked to learn that she has almost 30 years experience in IP law.
Really?
Why?
Color combinations are protectable and can be inherently distinctive in certain contexts. Shouldn’t the PTO be able to assess whether this is one of them?
Pink sparkly tinsel is never naturally occurring in hair, and it’s not functional.
What part of the analysis do you think is so sketchy that I can’t bring a few decades of work in this space into the decision?
Likely done to make a point, test the system…. I hope!
I know Heidi. I met her at last year’s INTA Leadership Meeting and just saw her in London (but did not speak with her). I’m sure this is a test case.
In Australia, it is not so difficult to register one’s particular appearance for services. I have done so and use that appearance in providing services, usually by email. I adopted the particular getup in 2008 and have used it at INTA Meetings. It differentiates me from others, which is the point and identifies me as the source of my services.
The more I think about this the more I think that it boils down to the type of trade dress at issue (product design (term of art), product packaging, or tertium quid) and thus what the appropriate criteria are to confirm that this particular hair style functions as a service mark. (And whether it can be inherently distinctive or will require a showing of acquired distinctiveness.)
I do not think it is as simple a Heidi says, i.e., that it is just a color combination.
So, does it fall under Walmart v. Samara Bros. or Two Pesos v. Taco Cabana?
I’m actually really curious to see how this comes out!
This could be a new business idea to better highlight your human touch and set yourself apart from robo-advisors. Basically LL.M (Master of Laws) -vs- LLM (Large Language Models) ☺