Last year I became the first business to market a product branded as a “festivus pole” at
www.THEFESTIVUSPOLE.com.
In doing so, I established common law trademark rights in the mark “festivus pole.” Shortly after establishing my site, offering the "festivus pole" for sale across the United States, a competing company, R&B Wagner, Inc., began marketing a similar product under the same brand name. As the season for the product is necessarily short-lived, and it was the first instance of possible confusion between the brands, neither I nor my competitor instituted legal action against the other.
However, late last year, a third individual, a potential competitor, filed with the
United States Patent and Trademark Office to register a trademark for the mark “festivus pole.”
This mark was approved by the examining attorneys at the United States Patent and Trademark Office and published for opposition on the
USPTO website and in the Trademark Official Gazette.
See publication:
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My competitor, R&B Wagner, Inc., through his attorney, then filed a notice of opposition asserting prior use and that the mark is descriptive and therefore not able to be registered as a trademark.
See opposition filing below.
Prior to my marketing the lengths of aluminum tube as a "festivus pole", which occured before publication of the books cited by R&B Wagner, Inc's attorneys (see filings below), the only way such a product was marketed was as "aluminum tube" or "aluminum pipe."
As the first one to market a length of aluminum tubing as a “festivus pole”, I established the priority to claim common law trademark rights in the "festivus pole" mark.
Upon researching my rights, I received the legal opinion of a prominent intellectual property attorney, whose firm is one of the most recognized authorities in Trademark, Copyright, Patent, and related Intellectual Property matters and has clients ranging from single individuals and small business to corporations with annual sales of more than $3 billion.
The attorney stated that on the a continuum of categorization of trademarks (ranging from fanciful, arbitrary, suggestive, descriptive or generic) the mark "festivus pole" is not descriptive and is able to be registered as a trademark.
I have been assured that the brand name "festivus pole" in no way describes any of the properties of a length of aluminum tube. In the words of the trademark attorney with whom I consulted,
"Festivus isn't a real holiday, so what is it descriptive of?"While the current legal procedings are open (see all the filings
here), I continue to weigh the options that I may pursue with regard to my rights.
As I said, I don't yet know whether or how I may pursue the rights that have been explained to me. I am open to input from all who may wish to offer their input... Comment below.
In the meantime, you can order your own Festivus Pole, from its original purveyor at
THE FESTIVUS POLEOpposition filing to United States Patent Trademark Office trademark registration:
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And, oh yeah, HAPPY FESTIVUS, from
THE FESTIVUS POLE
