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Often, we talk about mistakes people make in adopting some word or phrase as a trademark, a word or phrase they will never be able to protect. If that name is so commonly used and describes the product a word comes from, you will rarely, and sometimes never, be able to claim trademark rights. But there is another common trademark name misconception. It’s the idea that that no one can claim certain commonplace terms as a trademark. Like “Christmas.”
Entrepreneurs, like most people in business, like to gravitate towards one of those descriptive names because it tells the people what your product is and makes it a lot easier for them to understand what you are trying to sell and why. It is a trade-off. More descriptive name apps communicate your message much more quickly. The mantra is always the same – come up with something unique, something arbitrary, or even a name that you make up yourself. Those are your best paths to building a strong, strong brand name.
There is just something about the word Christmas. Whenever a company tries to claim it for its product name, competitors will inevitably say, “no one can own rights to Christmas.” Not true. There are thousands of active registrations in the United States Patent and Trademark Office which include the word Christmas. The overwhelming majority of them use Christmas in connection with some Christmas type of product, like Christmas trees or Christmas ornaments or Christmas tableware. And it is true that for those products, no one can claim exclusive rights to Christmas.
But not for all products. Want some examples?
What about using and registering Christmas for “frozen vegetables in the nature of chile?” Or Christmas brand “real estate brokerage services?”
And then there are Christmas-themed products, like “Christmas Coal” for un-popped popcorn, or “Christmas Eve” for candles.
Some companies prefer to adopt other names which might be just different enough from Christmas to qualify as a coined term – trademarks such as “Cryptmas” for a face serum and non-medicated cleansing products.
There is a company using “Crystamas,” which is registered for Christmas tree ornaments. It may sound and look a lot like Christmas, but if it is not “Christmas” – or essentially phonetically identical – you can register it even for a product which it otherwise would clearly describe, like ornaments.
For instance, there is a brand of doll (registered by Barbara Yaney of Somerset, New Jersey). Her name? “Mary Christmas.”
You just have to know, of course, that if you choose one of these variation-on-a-theme uses of Christmas, you are not going to have any luck stopping someone from using the conventional word “Christmas,” or a common designation like “Xmas,” or a host of other similar names. If you are using “Almost-But-Not-Quite Christmas,” you will have exclusive rights, but with severe limits.
Then, of course, there are the 2,000 or so active federal trademark registrations for pine tree or Christmas tree designs.
What about all the other Yuletide possibilities? Do not get me started on:
“Santa-” (Claus, Klaus, Claws, Monica, Clara, Ynez, Barbara – over 1,100 active federal registrations and counting);
“Elf”/”Elves” (288 of them) used with “Workshop,” “Santa’s Secret” or “Bicycle Brakes”.
You’ll also want to think long and hard before you use “Angel”: almost 10,000 “Angel” marks have been registered or applied-for over the years.
On the other hand, you might not go wrong with “Eggnog” – only 7 registrations!
To those who will still ask: “Yes, but how can they claim rights in a word like Christmas? No one can own Christmas!” there is a really simple, 5-letter answer that generally makes it understandable.
Apple has been ranked as the world’s most valuable brand. (This is not a holiday newsflash, and anyway, I think the markets are already closed for the day.)
But what is interesting is the fact that there are literally hundreds upon hundreds of other registered trademarks in the United States which include the word “apple,” owned by companies not headquartered in Cupertino, California. Certainly a lot of them are for “apple” (the fruit) related products, like food and drink. But we also have “Bloomin’ Apple” for haircare products, “Blue Apple Jewelry,” “Daily Apple” for skin care preparations, and the list goes on and on.
“An Apple A Day” seems to also describe how frequently companies try to register the word in the Trademark Office – like “Apple A Day Yoga” for yoga instructional services, owned Suzula Bidon of St. Paul, Minnesota, since 2014.
When a client wants to use an ordinary word like “Apple” or “Christmas,” a word that is already used by hundreds of others, the advice is usually, “OK, but you will never have a strong trademark.” “Apple” is the exception that proves the rule (never a concept I fully grasped, but anyway…)
If you are undaunted by all of this and think your company still has to use “Christmas” in your brand name, take inspiration from one of the many trademarks which play off the word “Christmas,” but are not directly Christmas-related, like the trademark registered for “Fistmas” for a type of beer (with a Christmas-themed can, albeit).
So you can see there are a Ho-Ho-Hole lot of ways you can go with this. With trademarks, there are few absolute rules. In the words of a brand (registered to Poo Pourri of Addison, Texas – for air deodorizers) “Merry Spritzmas To All And To All A Goodnight.”
December 24, 2018 at 02:30PM
Forbes – Entrepreneurs