Intellectual Property Law

"Brand Name Auction"?

By Michael Atkins

Trademarks for sale!! Come and get ‘em!

This is bizarre.

Bob Cumbow sent me a link to a Web site advertising a “brand name auction.”

The site states: “Buy a priceless Trademark, including its Domain Name, and reinvent its commercial success. Never in the history of marketing and advertising has there been this unique investment opportunity.”

It goes on to say: “The initial purchase is a royalty free, fully paid, exclusive license, including the right to sub license, that you can turn into full ownership when you file the Statement of Use and it is accepted by the Patent and Trademark Office.”

What?

If these include abandoned marks, they’re in the public domain, and anyone can adopt them without paying anyone, simply by using them.

The mention of a “statement of use” suggests at least some of the marks would be registered on an intent-to-use basis, meaning the applicant may have no vested right in the mark.

Indeed, I looked up one of the marks to be auctioned, GENERAL CINEMA. The Patent and Trademark Office lists two “dead” registrations and one “live” intent-to-use application. The live application — for “movie projectors” and “movie theater services,” among other things — was filed in 2004. It was published for opposition and allowed in 2008. The deadline for filing the statement of use has been extended five times. The file states the application is owned by a company called “200 Kelsey Associates, LLC,” of New Rochelle, NY.

I checked PTO records for two other marks offered — POM POMS and HANDI-WRAP. 200 Kelsey Associates owns an ITU application for POM POMS (for candy) and a registration for HANDI-WRAP (for plastic wrap and plastic film for household purposes).

The ad also mentions a license. Since I’m playing along, I’ve got to ask, will the licensor exercise quality control over goods sold in connection with the mark? If not, it’ll be a naked license and the licensor will be deemed to have abandoned its rights in the mark.

And if the auction contemplates an assignment, will the “purchase” include the marks’ associated goodwill? If not, the seller again will be deemed to have abandoned its rights.

In a sporting twist, the ad states: “Auction shall be conducted via High Bidder’s Choice. You win the bid, you pick the mark(s).”

You best bid high!

Or not at all.

Either way, the auction is scheduled for Dec. 8 at NYC’s Waldorf Astoria.

Full post as published by Seattle Trademark Lawyer on November 18, 2010 (boomark / email).