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Individual files US trade mark application “Kavanaugh Beer”

Written by Samuel O'Toole on 09 October 2018

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Brett Kavanaugh was confirmed by the US Senate on Sunday, he is now a serving Associate Justice of the Supreme Court after a nomination for the position by President Donald Trump.

Since Kavanaugh’s nomination he has been at the forefront of the papers, not least over allegations of a drunken sexual assault. Kavanaugh dismissed these claims, explaining that “I liked beer”.

A number of internet memes were born following Kavanaugh’s testimony, there is also #BeersForBret and now a Brian Chinavare has filed an application for “Kavanaugh Beer” with the United States Patent and Trade Mark Office (serial no. 88135225). The application is filed for use in class 33 for spirits.

However, US trade mark law provides that where a trade mark application contains the name of an individual e.g.  Kavanaugh consent from said individual must be obtained. Generally a trade mark applicant must provide a statement that the name in the application identifies providing consent to register the name as a trade mark. Consent is presumes whereby the named individual concerned signs off on the application.

It would therefore appear that “Kavanaugh Beer” is doomed to fail as it would be most unlikely that Associate Justice of the Supreme Court, Brett Kavanaugh, will grant consent for his name to be registered as a trade mark.

Things are slightly different in the EU, in Nichols plc v Registrar of Trade Marks (case C-404/02) the European Court of Justice (ECJ) found that when assessing the distinctive character of a surname, it must be done so on the specific circumstances of the case. Accordingly, common surnames may lack the requisite distinctive character needed for registration as a trade mark. There is no need to obtain consent from the named individual in the application as with the US.

It would therefore be prudent for those with an economic interest to set up a trade mark watch service to ‘keep an eye out’ for those trade mark applications that may be identical and/ or similar to the trading name or registered name. Trade mark examiners will not automatically refuse an application because of similarities with an earlier trade mark, it is for the rights holder to watch the register and oppose the similar applications.

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