Oak Tree Patents and Patent Center

Did you know that among plant patents are included some very large trees? Once such tree is the mighty oak, many of whom were felled recently by Hurricane Beryl. I decided that made this a good time to check out some patented oaks, and also show how to access their color photos in Patent Center, since that is where all color photos of plant patents now reside.

And, with that, I must ask if you have a MyUSPTO account. It isn't necessary to have one to search Patent Center, but it does give you lots of other advantages, like a home page that you can customize to your interests, and a second option for viewing expanded entries in a trademark search, and if you want to apply for a patent or trademark pro se, it is kind of required.  [I am here, in part, to promote the services of the USPTO; so just deal with the occasional plug!]

A view of my homepage in MyUSPTO

However, as I have learned the hard way, you cannot easily download or view patent images in Patent Center with the wrong internet browser. For example, my default at the office, Firefox. 

And because I don't want to mislead anyone, it is not easy to search using Patent Center. You need to know some kind of concrete number information first, like a publication, patent, application, PCT, or international design registration number. So we have to start with either the University of Maryland Libraries Plant Patent Image Database (only up to a certain point), Patent Public Search, or something like Lens. 

...This is getting complicated. Let's just look at some pretty oak pictures. I'll link you to more info for each.

We're going to focus on live oaks, Quercus fusiformis, because those are one of the most abundant in Houston.  

First, the Texas live oak 'Joan Lionetti' PP27,646. It's a cultivar that clearly is meant for our state. Patented in 2017, it's possible growing around us already.

Texas live oaks are abundant on Rice's campus, I wonder if any are patented?

I also quite like the southern live oak named 'Canon-Sharp', PP19,608 but that may be due in part to the very proud plant parent in the official image. It's hard not to like a tree that has so clearly pleased someone they felt the need to pose with it for a patent.

This person felt it was necessary to pose with the tree, when it really isn't

A live oak named 'SDLN', PP12,015, (they really didn't feel the need to name it anything memorable) has a good growth pattern and very nice natural shape. Oaks are nice.

A very forgettable name but a nice tree nonetheless

The southern live oak named 'CLTF2', PP11,097, does not have as nice of a shape as 'SLDN' in my opinion. However, it does have more interesting leaves, so perhaps that's compensation.

Is it just me, or do you also think this one doesn't have as nice a shape?

There are many more oaks out there that have been patented, but I though a few live oaks was sufficient for one day.

Mission(s) to Mars

As always, whenever I see something IP related (do I need to link to that post yet again?), I tend to take note. About half the time, I look up whatever I saw later. 

So of course when I was reading a book from Fondren's excellent leisure reads collection (which may look small but those books aren't discarded later, they just relocate--so Fondy has LOTS of fun books), and I saw a trademark disclaimer at the start, I could not help but want to learn more. Here's an image:

Disclaimer straight from the book

For context, the book is Girlfriend on Mars by Deborah Willis. If you want to read it, I should have it back to Fondy by Tuesday or Wednesday. I'm plowing through print books lately on the offhand chance that the light from screens is affecting my sleep. I don't stay up playing games or watching videos or scrolling through social media, I tend to stay up and read books, but they're on my iPad. When I started having a hard time reading print because it gets dark and the text is small, I defaulted to that option. 

Sorry, that was much more information about my personal reading habits than necessary.

Back to the disclaimer. The book uses a fictitious company and endeavor called "MarsNow", which bears some resemblance to other commercial space efforts owned by billionaires in the real world, but is not related to the real registered Mars Now trademarks. And there are two that my brief search of the USPTO trademark database found, and two more in the WIPO Global Brand Database. 

Marsnow, no. 5031834, the mark registered to Chen Yong jun of China, is just a simple word mark and fora variety of clothing, mostly sports wear. It also has an international entry but is only registered in the US.

Also in the USPTO database is #MarsNow, which is dead, abandoned, never registered, from 2017, for t-shirts, and submitted by the Tee Party Company. I think it wasn't a strong application. Cool specimen, though. 

Specimen photograph from the TSDR files for #MarsNow

There is also a Marsnow registered in South Korea, which was submitted in 2013. It is now dead, the protection ending in November 2023. I am uncertain what it is for (my Korean is nonexistent), other than "electrical and scientific apparatus", which is the given international class for its goods. 

Finally, there is the last Marsnow, registered in India in 2019. It is protected through 2029, and also class 9, but this one includes more specifications. The record claims primarily mobile accessories for phones and Bluetooth equipment. Unlike all other other Marsnow, it has a cool logo and isn't just a basic word mark.

Intellectual Property India, registration no. 4185381

Well, I guess that's Marsnow. MarsNow. I don't think I would have confused any of those with the fictitious company, but I suppose CYA is important.

Whataburger v. What-A-Burger #13

If you aren't carefully following the exploits of the Kelley Center mascot, Ollie, you may have missed out on a recent post featuring a few Whataburger trademarks. If so, a rather serendipitous event occurred in the IP world recently that compels us to examine their registrations once again. And no, I am not referring to the Whataburger app being a power outage map, although that is pretty innovative use.

Ollie at a Texas Whataburger location, for those of you who missed it

It's about a North Carolina restaurant, What-A-Burger #13, being held accountable for infringement by the now-corporate Whataburger. Instead of rewriting the story and the history of each, here's a link to an article.

Let's go over some extant marks, and speculate on how likely it is to confuse the two, since apparently Whataburger intends to leave its roots and branch out into a mega corporation of fast food in many states. (I have opinions about this and the acquisition of the company by a private equity firm in 2019, but we're also avoiding that today.) 

Documentation of 1975 registration

Initially on Instagram and Facebook, we looked at two marks, one for the iconic striped W plus Whataburger name, and the other for a service mark assigned to the name. But those are just two of many, live and dead. And they are for a variety of goods and services--some for the food itself and others for food service; even charities, playing fields, and more. The name Whataburger alone has quite a few registrations; a brief search reveals 7 registrations for the plain word mark and two for a combo word mark and word appearance. There's a second registration for the W, this one without the whole name, registered in 2016.

2016 registered W

And, since this is a Texas-spawned chain, they also hope to one day own Que Hamburguesa. An application for the word mark was filed in November of 2022, and it is currently under review by an examiner. Learn more here. I only wish they had a specimen!

You'll find these marks, although clearly for the same burger establishment, are owned by two different entities: Whatabrands LLC and Tres Aguilas Enterprises, LLC. Both claim Texas as their location, so without more research (I'm focused on another aspect of this IP; look it up for me if you must know) I assume they are subsidies of the non-Texas private equity firm.

Unfortunately, I cannot find any records of marks, dead or alive, for NC's What-A-Burger #13 in the USPTO's database. That may be due to inadequate searching, or they may not have ever pursued federal registration for a very local brand. And because I do not know enough about the state laws for marks in NC, I can't be certain about state-level registration. I found no claims to any marks on their website, either--not even common law indications. (They have copyrighted it.) It's probably too late now, but I imagine that would have helped them make a case against Whatabuger. 

In my inexpert opinion, it seems highly unlikely the two would be confused. There is no similarity to color scheme or fonts, and the addition of the dashes and the number for only one of the two make it even more distinct. In particular, the fact that both have been around for so many years points to a continued lack of confusion by consumers and earned distinctiveness. An argument could be made that a person unfamiliar with either brand would be confused when first introduced to both, but that is not a scenario likely to play out with any frequency, if ever. The two are made distinct by their history, continued use, and style of products.

Anyway, I don't think this is going to end well for either establishment. Either NC What-A-Burger will be forced to change their name and theme, losing a lot of history and recognition and making TX Whatabuger look like big jerks. Or, TX Whataburger will lose, making them look like ineffective bullies and forcing NC What-A-Burger to pour money they don't have into legal defense.