By Michael Silbergleid
On February 21, 2013, the folks at DirecTV filed trademark applications for a variety of 4K related terms. Those included 4KN, 4KNET, 4K Network, 4KNetwork, and 4K. Yes, plain old 4K.
I don't have any problems with 4KN, 4KNET, 4K Network, and 4KNetwork, but I have a major problem with DirecTV trying to trademark 4K ( trademark application serial number 85856740).
4K is an industry term and we like it. But it is also somewhat problematic legally as 4K doesn't necessarily have a horizontal resolution of 4,000 pixels, but 3840 pixels ( 2160 pixels) which is why the CEA uses the terms Ultra High-Definition or Ultra HD electronics manufacturers don't want to be sued for using 4K and not actually selling a TV with 4,000 horizontal pixels.
And there is also an existing 4K registered trademark and other trademark applications for 4K as well. We'll get to those further down.
First, 4K would be a registered service mark. According to the United States Patent and Trademark Office (USPTO), a service mark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of a service rather than goods. The term trademark' is often used to refer to both trademarks and service marks.
As a service mark, it would look like this before the trademark is granted: 4K . It would look like this after the trademark is granted: 4K .
If the 4K trademark is granted, your 4K can't be called 4K because it could be confused with DirecTV's 4K, and that would be bad (mostly for you).
So let's look at DirecTV's trademark application. The first thing to understand are trademark classes. These are the areas that the trademark would be protected in. DirecTV wants trademark protection in two classes, Class 38 (telecommunications) and Class 41 (education). What DirecTV wants with respect to Class 38 is exclusive use of 4K : Satellite television broadcasting; satellite transmission services; broadcasting programs via global computer network; video-on-demand television transmission services; streaming of audio and video content via the Internet, other computer networks, wireless networks and electronic communication networks.
With respect to Class 41, DirecTV's exclusive use (according to its trademark application) would be for: Distribution of television programs for others; Television programming; Programming on a global computer network; Pay-per-view television programming; Video-on-demand television programming; production and distribution of television programs; providing on-line interactive computer databases featuring television programming lists, and schedules; providing on-line interactive computer databases featuring information about television shows, movies and other digital images, audio, video and other multimedia content, all in the field of entertainment; providing a website featuring information about television programming.
Those are very, very broad, as most trademark applications are. The result, if granted? Almost nothing else in our industry related to visual electronic media could be called 4K.
Does this make you a bit angry? It makes me angry.
As of April 10, 2013, the status of DirecTV's 4K trademark is questionable and the trademark has been refused for a number of reasons, not the least of which is an attorney for the trademark office found that 4K merely describes a feature of DirecTV's services. DirecTV has six months (October 10, 2013) to submit evidence and arguments in support of registration.
But ironically the registration was also refused because of confusion with U.S. registration number 4119847. What mark is that? It's 4K of course, and it's in the same Classes and no one in the industry noticed. The trademark was granted on March 27, 2012 to 4K Computer LLC of Houston, Texas. It's even broader in scope than DirecTV's application, but 4K Computer got its application in before DirecTV. But the broadest protection comes with the use of 4K for Broadcasting of television programmes [sic].
Examining Attorney Kathleen M. Vanston put it this way: In the present case, applicant's mark is 4K and registrant's mark is 4K. Thus, the marks are identical in terms of appearance and sound. In addition, the connotation and commercial impression of the marks do not differ when considered in connection with applicant's and registrant's respective goods and/or services. Therefore, the marks are confusingly similar.
Registrant is using its mark in connection with radio, television, internet and video on demand broadcasting and the provision of telecommunication access to television programs and films. Applicant intends to use its mark on television, internet and video on demand broadcasting along with television program production and distribution and television programming. Both registrant and applicant are providing or intend to provide broadcasting services. Moreover, registrant provides access to television programs which may be produced by applicant. The services of the parties, therefore, are highly related. The similarities between the marks, therefore, and the relatedness of the services create a substantial likelihood that consumers may be confused as to the source of the services.
But wait there's more
There's also another application ( serial number 85756675) for a 4K trademark, from Konami Digital Entertainment of Japan that was filed before DirecTV's application. And Classes 38 and 41 were included (sine filing, Class 38 has been refused in a final action). Should that application be granted, DirecTV's application for Class 41 protection would be refused due to confusion between the two marks. BTW, the Konami application in the remaining Classes should be opposed as well.
If these actions
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By Michael Silbergleid
